Cobb v. Bear

• Citation: 57 Fla. 370,49 So. 29
• Parties: COBB et ux. v. BEAR.
• Decision Date: 23 March 1909
• Court: United States State Supreme Court of Florida

49 So. 29

57 Fla. 370

COBB et ux. v. BEAR.

Florida Supreme Court

March 23, 1909

Headnotes Filed April 15, 1909.

In Banc. Appeal from Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Bill by Morris Bear against N.H. Cobb and wife. Decree for complainant, and defendants appeal. Reversed.

Syllabus by the Court

SYLLABUS

Under section 1 of article 11 of the state Constitution of 1885 which provides that 'all property, real and personal, of a wife owned by her before marriage, or lawfully acquired afterwards by gift, devise, bequest, descent or purchase shall be her separate property, and the same shall not be liable for the debts of her husband without her consent given by some instrument in writing, executed according to the law respecting conveyances by married women,' two subscribing witnesses thereto are essential to the validity of a mortgage executed by a married woman upon her separate real property for the purpose of securing a debt of her husband.

COUNSEL R. P. Reese and J. P. Stokes, for appellants.

Reeves & Watson, for appellee.

OPINION

SHACKLEFORD J.

The appellee filed his bill in chancery in the circuit court for Escambia county against the appellants for the foreclosure of a mortgage alleged to have been executed by the appellants to the appellee upon certain described lands in the counties of Escambia and Santa Rosa to secure the payment of a promissory note executed by the appellants to the appellee for the sum of $2,500. The appellants by their answer attempted a denial of ever having received the sum of $2,500, claiming to have received only the sum of $1,973.69; also a denial that the mortgage deed was 'the deed of the defendants or either of them'; and also setting up the intoxication of N.H. Cobb prior to and at the time of the alleged execution of the mortgage, that the property embraced therein was the separate estate of Mary A. Cobb, the wife of N.H Cobb, 'that she signed the same under compulsion and fear of her said husband,' and so stated to the notary public taking her acknowledgment, and that 'R. A. Hyer, whose name appears as a witness to the execution of said alleged mortgage deed, was not present when the same was signed, and neither of these defendants have ever, since said time, acknowledged to him their signatures to the same.' On motion of the appellee, certain portions of the answer in regard to the intoxication of N.H. Cobb, the execution of the mortgage deed under duress or compulsion by Mary A. Cobb, and the absence of one of the subscribing witnesses thereto, were stricken out. This ruling forms the basis for one of the assignments of error, as the ruling of the court refusing leave to the defendants to file an amended answer forms the basis for another assignment; but, in view of the conclusion which we have reached, it becomes unnecessary for us to consider either of them. A replication was filed to the answer as it stood after certain portions had been stricken out, and the cause was referred to a special master to take the evidence. Upon his report of the evidence so adduced before him, covering more than 100 typewritten pages, the court rendered a final decree in favor of the complainant in accordance with the prayers of his bill, from which decree the defendants have entered their appeal to this court.

The uncontradicted evidence establishes the fact that the real estate described in the mortgage was the separate property of Mary A. Cobb, the wife of N.H. Cobb, and that, although there are the names of two subscribing witnesses to the mortgage R. A. Hyer, one of such witnesses, was not present at the execution of the same. Henry Hyer, the notary public who took the acknowledgment, and who was the other subscribing witness, testifies that ...