Miller v. Phillips

• Decision Date: 12 March 1946
• Citation: 25 So.2d 194,157 Fla. 175
• Parties: MILLER v. PHILLIPS et vir.
• Court: Florida Supreme Court

25 So.2d 194

157 Fla. 175

MILLER v. PHILLIPS et vir.

Florida Supreme Court

March 12, 1946

Appeal from Circuit Court, Dade County; George E. Holt judge.

Hyzer & Padgett, of Miami, for appellant.

Frank E Bryant, of Miami, for appellee.

THOMAS, Justice.

Evie Louise Phillips, feme covert, entered into a written contract to sell certain of her lands to Rodney Miller, but notwithstanding the agreement, she and her husband later advised the appellant that they would not perform. The husband did not execute the contract. For many years he had been blind and unable to sign papers except by affixing his mark. Upon occasion his wife had executed instruments for him. He was active in listing for sale the property now in controversy, and when the broker explained the contents of the contract to him and his wife he approved its provisions. Many years before he had given a power of attorney to his wife, and this instrument had not been revoked. These facts were alleged in the bill of complaint, which contained the prayer that the appellees specifically perform the contract. The chancellor dismissed the bill upon motion, and this appeal followed.

The primary question is the enforceability of the agreement signed only by the wife, and the secondary ones are the effect upon it of the husband's verbal approval and the outstanding power of attorney.

The statute immediately brought to mind, and stressed by the appellant is Section 708.08, Florida Statutes 1941, and F.S.A., which is the first section of Chapter 21932, Laws of Florida, Acts of 1943. This so-called emancipatory measure is decidedly interesting when the portions of it dealing with the sale and conveyance of a married woman's separate real property--the situation with which we are confronted--are studied. We quote the whole section italicizing such parts of it as seem directly to affect a transaction of this character: 'Every married woman is hereby empowered to take charge of, and manage and control her separate property, to contract and to be contracted with to sue and be sued, and to sell, convey, transfer, mortgage, use and pledge her property, real and personal, and to make, execute and deliver instruments and documents of every character, without restraint, without the joinder or consent of her husband, in all respects as fully as if she were unmarried. Every married woman, without the joinder or consent of her husband, shall have and may exercise all rights and powers with respect to her separate property, income and earnings, and may enter into, obligate herself to perform, and enforce contracts or undertakings to the same extent and in like manner as if she were unmarried;...