Gibson v. Ingalls
| Citation | 161 So. 395,119 Fla. 214 |
| Parties | GIBSON v. INGALLS et al. |
| Decision Date | 01 May 1935 |
| Court | United States State Supreme Court of Florida |
En Banc.
Suit by Hazel B. Gibson, a feme sole, against W. W. Ingalls and another. From a decree for defendants, complainant appeals.
Affirmed.
Appeal from Circuit Court, Dade County; H. W. Atkinson, Judge.
Roscoe Brunstetter, of Miami, for appellant.
George Edward Holt, Evans, Mershon & Sawyer, and M. L. Mershon, all of Miami, for appellees.
In this cause Mr. Chief Justice WHITFIELD, Mr. Justice ELLIS, and Mr Justice TERRELL are of the opinion that the decree of the circuit court should be reversed; while Mr. Justice BROWN Mr. Justice BUFORD, and Mr. Justice DAVIS are of the opinion that the said decree should be affirmed. When the members of the Supreme Court sitting six members in a body, and, after full consultation, it appears that the members of the court are permanently and equally divided in opinion as to whether the decree should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the court, the decree should be affirmed therefore, it is considered, ordered, and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the decree of the circuit court in this cause be, and the same is hereby, affirmed.
Affirmed.
The diamond ring which was pledged for the debt of the husband was the separate property of the wife, and 'her consent' to such pledge was not 'given by some instrument in writing,' as required by the Constitution. Estoppel should not be adjudged against the owner of the ring when the record shows usury by the pledgee in the transaction.
The appellant, Hazel B. Gibson, sought by bill in chancery to declare a certain transaction between W. W. Ingalls and Roy E. Gibson, the quondam husband of the appellant, in which the latter, while he was appellant's husband, procured a loan of $900 from Ingalls and pledged as security for the repayment thereof a diamond ring of the appellant, void on the ground of usury, which the appellant alleged in her bill amounted to more than a charge of 25 per centum per annum upon the loan.
It was also later contended that the transaction was void as being in violation of section 1 of article 11 of the Constitution, which provides as follows: 'All property, real and personal, of a wife owned by her before marriage, or lawfully acquired afterward 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.'
The alleged usurious phase of the transaction has been abandoned because in appellant's brief the question is not included in the 'Statement of Questions Involved,' as required by rule 20 of the Rules Governing Practice in the Supreme Court of Florida, which became effective January 1, 1931. The rule was adopted in order that the Supreme Court might be able to obtain an immediate view of the nature of the controversy, and where no brief has been filed by the appellant in accordance with the rules, the cause may be dismissed or the judgment affirmed, unless upon motion for good cause shown the court sees fit to permit additional time for the filing of new briefs in compliance with the requirements of the rule. The rule is mandatory; made so by its own provisions.
It follows from the provisions of the rule that where a question of law is expressly raised by an assignment of error and not stated in the brief in the 'Statement of Questions Involved,' the assignment is waived.
It is not necessary to make each assignment of error separately the basis of one of the questions in the 'Statement of Questions Involved.' Indeed, the rule contemplates that one question involved may include several assignments of error.
Paragraph (f) of the rule entitled 'Argument' provides that the portion of the brief containing the argument shall be divided into as many parts as there are 'questions' to be argued, and each part shall refer to the specific assignments of error alleged to raise the particular question discussed.
The brief of appellant, however, does not contain a discussion of that phase of the case involving usury.
The original bill definitely attacked the transaction as usurious, alleging that Ingalls contracted to receive, and did receive, a sum greater than 25 per cent. interest on the amount advanced by him to Gibson, appellant's husband, at the time of the transaction.
The original bill was filed in August, 1932, and an amended bill was filed in March, 1933, before an answer was interposed. The amended bill likewise attacked the transaction because of usury, and because the property, being the separate property of the appellant, was not 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. That attack was also made in the original bill, but was more fully presented in the amended bill.
The facts in the case are that in November, 1931, Mrs. Hazel B. Gibson was the owner of a diamond ring. The diamond was a four carat, sixteen point, stone set in a platinum mounting valued at approximately $4,000, according to the testimony of Mrs. Gibson. Mr. Gibson was starting in business and needed money with which to pay for part of his merchandise which he had already purchased. He applied to his wife for use of the ring to hypothecate as security for a loan of $900, which he obtained through Mr. Retalick, a cashier of the First National Bank in Miami.
Mrs. Gibson hesitated for a while about lending her ring to her husband for the purpose for which he intended to use it. When he said to her that if she did not give him the ring for that purpose she 'wouldn't eat,' she said she let him have it.
Her consent to the use of the ring for the purpose for which it was used was not evidenced by any instrument in writing of any description. The ring was taken by Mr. Gibson and hypothecated as security for a loan of $900 obtained by him from Ingalls, the defendant. It does not appear that Mr. Ingalls knew at that time that the ring was the property or Mrs. Gibson.
Testimony was taken after the answer of the defendant was filed, in which he denied that the property was the separate property of Mrs. Gibson, and denied that Mr. Gibson informed him that it was her separate property, or that he came into possession of it with 'full and complete knowledge that the title and legal ownership was vested in complainant, and that the same was her separate property.'
About nine months before the amended bill was filed, Mrs. Gibson obtained a decree of divorce from her husband.
The chancellor found that the ring was delivered into the possession of Mr. Gibson by his wife for the 'express purpose of pledging the same and procuring a loan thereon for their mutual benefit,' and that Mrs. Gibson 'participated in the proceeds of said loan'; that the ring was lawfully pledged by Mrs. Gibson and her husband to the defendant Ingalls to secure payment of a loan in the sum of $900; that the usury in the transaction was not established, and that the equities in the case were with the defendant Ingalls. The ring was ordered to be sold and the proceeds applied to the payment of the debt and interest and the surplus of such proceeds of sale to be paid over to the complainant. The bill of complaint was dismissed at complaint's cost.
The chancellor's view of the law as expressed in the decree, and which he applied to the facts as he found them to exist, was: First, that the Constitution does not require transfers of the wife's personal property to be made by an instrument in writing where the transfer is made with her knowledge and consent in obtaining a loan for her benefit, and where she participated in the proceeds, and where the transaction, as in this case, is not one which by other provisions of the law is required to be evidenced in writing; second, the provisions of the Constitution relating to the separate property of married women, while 'intended to protect the property of the wife against seizure and sale under legal process to satisfy debts of the husband, were not intended, and do not have the effect, to void or nullify lawful contracts as to the disposition of the wife's personal property which have been made with her knowledge and approval.'
The ring was the property of Mrs. Gibson. She allowed her husband to use it for the purpose of pledging it as security for a loan to be obtained by him in an amount as to which she was not informed, and as to the terms of which she was not advised. We do not agree with the chancellor that the evidence shows that she participated in the proceeds of the loan or obtained any benefit from it at all.
It cannot be maintained that because he vaguely threatened to refuse to contribute to her support unless she allowed him to use the ring to obtain a loan of money for use in his business, and afterwards she continued to be maintained by him, she may be said to have participated in the proceeds of the loan. In that way any wife may be said to benefit by the business activities of her husband and participate in the proceeds of his business operations. It may be true that a wife fares better or worse, so far as actual living conditions are meant, according to the financial success of her husband, and in that general sense may be said to participate in the profits of...
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