Equitable Bldg. & Loan Ass'n v. King
Decision Date | 28 June 1904 |
Citation | 37 So. 181,48 Fla. 252 |
Parties | EQUITABLE BLDG. & LOAN ASS'N v. KING et al.[*] |
Court | Florida Supreme Court |
Appeal from Circuit Court, Alachua County; William S. Bullock Judge.
Action by the Equitable Building & Loan Association against Louise G. King and others. Decree for defendants, and plaintiff appeals. Reversed.
Syllabus by the Court
1. The courts of one state do not take judicial notice of the laws of a sister state.
2. Chapter 4158, p. 80, Acts 1893, authorizing foreign building and loan associations to do business in this state, does not relieve them from the general rule which requires that the validity of their contracts made in this state shall be tested by the laws applicable to domestic corporations of like character.
3. Under section 2208, Rev. St. 1892, the bond of a married woman and a mortgage given by her upon her separate real estate to secure a loan from a building and loan association must be executed by the husband as well as by the wife, in order to render same valid for any purpose, and a bond so given executed by the wife alone is void.
4. Under section 1981, Rev. St. 1892, a deed absolute, made for the purpose or with the intention of securing the payment of money, is deemed to be merely a mortgage, and it may be enforced as such.
5. The record of a deed absolute or of a mortgage which does not state the amount or other particulars of a debt which on its face it purports to secure, is sufficient to put creditors and subsequent purchasers upon notice that the grantee has rights in the property conveyed, and upon inquiry as to the extent of those rights.
6. While married women cannot make contracts of any kind that will bind them personally either at law or in equity, yet their agreements, made for the benefit of their separate statutory property, have never been regarded as absolutely void for all purposes, but, on the contrary, courts of equity have charged the separate property for money due thereon and, as the agreements are valid to that extent, it is competent to secure the money due upon such agreements by mortgage upon the separtate statutory property where the capacity to mortgage is conferred in general terms by statute, and the mortgage is duly executed and acknowledged in compliance with law, and the husband joins in such execution when required by the statute.
7. Under section 2, art. 11, Const. 1885, which provides that 'a married woman's separate real or personal property may be charged in equity and sold, or the uses, rents and profits thereof sequestrated * * * for money or thing due upon any agreement made by her in writing for the benefit of her separate property,' a married woman's separate property cannot be charged for money borrowed by her to pay off a valid incumbrance on her separate statutory property in the absence of an agreement made by her in writing.
8. A married woman, with the knowledge and consent of her husband obtained a loan from a building and loan association of $1,200 for the purpose of paying off a valid purchase-money mortgage then existing upon her separate statutory property and the money so obtained was used for that purpose. The wife alone executed her bond to the building and loan association, and she and her husband duly executed and acknowledged a conveyance to the building and loan association of the separate statutory property of the wife, which, though absolute in form, expressed a consideration of $1,200, and contained a clause as follows: 'This deed of conveyance is made by the parties of the first part as collateral for a loan, and the party of the second part does agree that on payment of said loan good and sufficient title with limited covenants of warranty will be furnished to the parties of the first part, and the party of the second part has given its bond for the fulfillment of this agreement.' The husband did not sign the bond, nor did he ever promise verbally or in writing to make himself personally responsible for the repayment of the loan. The mortgage deed contained no covenant to repay the loan upon which the husband could be held personally responsible for the debt. The loan was obtained upon a written application, signed by the wife, which stated the amount of the loan, the purpose for which it was to be used, and that the loan was to be repaid. Held, that the mortgage deed was a valid security, and could be enforced in equity for the amount of such loan, though not for the bond, which was void.
W. W. Hampton, for appellant.
Evans Haile, for appellees. On September 16, 1891 appellee Louise G. King, who was then the wife of J. W. F. King, became the owner in fee simple of the land involved in this controversy by purchase from one Calvin Gillis. The deed from Gillis vests the title in Louise G. King as her separate statutory property, and contains a recitation that she and her husband had mortgaged the same land to Gillis to secure payment of the purchase money. On the same day Louise G. King and her husband executed and acknowledged in proper form a mortgage to Gillis covering the same land to secure the payment of $1,000, with interest thereon, stated to be due Gillis for purchase money of the land. Gillis filed his bill in equity to foreclose this mortgage in March, 1893. Pending this proceeding, in October, 1894, Louise G. King made written application to appellant, a foreign building and loan association, for a loan of $1,200. It was therein stated that she would transfer to the association certain shares of its capital stock held by her, as collateral until the loan was paid; that she would give her bond for the payment of installments due on stock, interest, etc., according to the rules, regulations, and by-laws of the association; that she would also give a mortgage upon the property in controversy; that she bought the property in 1891, and had a warranty deed to same; that the property was her home; that it was incumbered by a mortgage for $1,200; and that she intended using the money applied for to pay mortgage of $1,200. In her written affidavit attached to the application she stated that she made the statements in the application for the purpose of obtaining a loan of money on the land therein described. In November, 1894, the application for loan was accepted, and during the following month the sum applied for was paid to Gillis, who satisfied and canceled his mortgage of record, and dismissed his foreclosure suit. Before the money was secured, however, Louise G. King made her bond to the association in the penal sum of $2,400, conditioned that she would pay in monthly installments $1.20 on each share, and at the same time in equal monthly installments interest at the rate of 6 per cent. per annum, or the sum of $1.20, on the loan is a Georgia contract, and in all respects shares of stock held by her in the association, until the series should terminate and mature pursuant to the charter, rules, and by-laws of the association, as security for the loan, with a stipulation that when the series matured same should be canceled, the indebtedness paid, and the bond become void. There were certain other stipulations in the bond, not necessary to be set out at length. At the same time Louise G. King and her husband executed and acknowledged in proper form a deed with full covenants of warranty conveying to the association for the expressed consideration of $1,200, recited to have been paid to them by the association, the land in controversy, which deed was duly recorded in December, 1894. The deed contains a clause in the following language: 'This deed of conveyance is made by the parties of the first part as collateral for a loan, and the party of the second part does agree that on payment of said loan good and sufficient title with limited covenants of warranty will be furnished to the parties of the first part, and the party of the second part has given its bond for the fulfillment of this agreement.'
On March 30, 1898, Louise G. King and her husband executed and delivered to appellee R. R. Rosborough their mortgage upon the property in controversy to secure payment of two promissory notes executed on the same day, which mortgage was recorded July 30, 1898.
On January 2, 1899, appellant filed its bill in the circuit court of Alachua county against Louise G. King, J. W. F King, her husband, and R. R. Rosborough, seeking foreclosure of its mortgage; but the bill did not allege that the loan was intended or used for the benefit of the separate statutory property of Louise G. King, but merely that a loan was made to her for which she gave bond, and that the mortgage was intended to secure the bond. Louise G. King and J. W. F. King demurred to this bill, and the court sustained the demurrer upon the ground that the bill was wanting in equity because the bond was signed by the married woman alone, in consequence of which the bond, as well as the mortgage given to secure it, was on stock, premiums, fines, etc. In the face of filed, which the court denied, whereupon appellant applied for leave to amend the bill. Leave was granted, and the bill was amended so as to allege that the loan to Louise G. King was to enable her to pay off the Gillis mortgage upon the land, which constituted here separate statutory property; that the loan was actually used for that purpose; that the mortgage deed was given to secure repayment of said loan; that the bond was given as additional security, and was separate and distinct from the mortgage; and that the money due upon the mortgage, irrespective of any liability of Louise G. King upon the bond, was due and unpaid. This amended bill prayed that the mortgage deed be foreclosed for the amount due upon the bond, or, if the bond should be held...
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