Dzialynski v. Bank of Jacksonville

• Decision Date: 21 July 1887
• Parties: DZIALYNSKI and another v. BANK OF JACKSONVILLE.
• Court: Florida Supreme Court

2 So. 696

23 Fla. 346

DZIALYNSKI and another v. BANK OF JACKSONVILLE.

Florida Supreme Court

July 21, 1887

Appeal from circuit court, Polk county.

Bill to foreclose a mortgage executed by the appellants, Dzialynski.

Syllabus by the Court

SYLLABUS

A wife may, with her husband, make a valid mortgage of land of which she is seized in fee, to secure the promissory note of her husband.

The note was signed by both husband and wife, and purported to bind them jointly and severally. The mortgage is held to be valid, though it is not made to appear that the note was given for the purchase price of the land, nor for money applied to or used for the improvement of the land, or any of the separate property of the wife, nor that the husband had any interest in the land. Hodges v. Price, 18 Fla 342, distinguished.

A demurrer to a bill in chancery may be good as to one defendant, and bad as to others; and may be sustained as to the former, and overruled as to the latter parties.

A joint and several demurrer by husband and wife to a bill in chancery for a foreclosure of a mortgage, on the ground that it seeks a personal decree against the latter for any balance of indebtedness which may remain due after the sale of the mortgaged premises, should be overruled as to the former, and sustained as to the latter.

An error in an interlocutory order does not require the reversal of a subsequent decree into which such error has not been carried, but such order may be reversed as to any future proceedings in the cause against the party as to whom it is erroneous.

Damages on account of a frivolous appeal will not be allowed unless it clearly appears that the appeal was taken merely for delay. The questions presented by the record held not to justify damages.

COUNSEL Wall & Turman and S. M. & G. B. Sparkman, for appellants.

A. W Cockrell & Son, for appellee.

OPINION

RANEY J.

1. Appellees filed their bill in the circuit court of Polk county to foreclose a mortgage on certain real property therein. The bill alleges that the said Mary was seized in fee of the lands described in said mortgage, and that the note which said mortgage was given to secure was executed jointly andseverally by the said Mary and Philip Dzialynski. The note and mortgage which are made exhibits to the bill, were given by the appellants to M. A. Dzialynski, and by him assigned to appellee.

The defendants' answer admits that they were in possession of the property, and that Mary Dzialynski was seized in fee-simple thereof as her separate property. They further set up in their answer that the promissory note mentioned in said bill of complaint, and on which said mortgage is predicated was not given for the purchase money of the mortgaged premises, the same being the separate property of Mary Dzialynski; nor was it given for money which was applied by or used for the improvement of the mortgaged premises, or any of the separate property of Mary Dzialynski, and that it did not appear that said Philip Dzialynski had any interest in the mortgaged property other than as the husband of the said Mary; and they contend that the decree is consequently erroneous.

Counsel for appellants, in support of this position, refer us to the case of Hodges v. Price, 18 Fla. 342. In that case Mary Hodges, the wife of John Hodges, gave her individual promissory note to Price, and she and her husband executed the mortgage to secure the same. As we understand that case, it decides that the promissory note of the wife, not joined in by the husband, considered without the aid of any allegations to show that it was given for a debt for which the law authorized her to charge her separate property, was a nullity. We do not think it intended to go to the extent of deciding that the wife, if the husband joined with her in the note and in the mortgage, could not bind her separate legal estate, regardless of the fact as to whether the money was received and intended by her for the benefit of her separate estate or not, or as to whether it was the debt of the husband, and she mortgaged her property for the purpose of securing it. The allegation of a several promissory note of the husband is an allegation of an indebtedness, and of such an indebtedness as she could mortgage property of which she is 'seized in fee' to secure the payment of. The language of our statute is that a married woman owning real estate of inheritance in this state may sell, convey, transfer, or mortgage the same, in the same manner as she might do if she were sole and unmarried.

The statute puts only two restrictions upon this right: First that her husband shall join in such mortgage or conveyance; and, second, that it shall be acknowledged and authenticated in a particular manner described. McClel. Dig. p. 755, § 9. There is no condition as to the nature of the debt for which she can mortgage her property; and we can see no reason why, when the husband joins in the mortgage, and it is properly acknowledged and authenticated, the wife cannot make a valid mortgage...