Morgan v. Simpson

• Decision Date: 30 December 1929
• Citation: 98 Fla. 1155,125 So. 350
• Parties: MORGAN et al. v. SIMPSON.
• Court: Florida Supreme Court

125 So. 350

98 Fla. 1155

MORGAN et al. v. SIMPSON.

Florida Supreme Court, Division B.

December 30, 1929

Suit by Elva A. Simpson against Adele M. Morgan and husband. From an adverse order, defendants appeal. Reversed and remanded, with directions.

Syllabus by the Court

SYLLABUS

Realty purchased by married woman under agreement for deferred payments, and title to which passes, may be subjected to payment of balance (Const. art. 11, § 2). Where title to real estate passes to a married woman, and she executes her written agreement to pay a part of the purchase price at future dates, and the title remains vested in such married woman, and she fails to pay the purchase price as agreed, the vendor of the property may subject the property conveyed to the payment of the balance of the purchase price.

Married woman's agreement to pay for realty, of which she is to acquire title when deferred payments have been made, is void (Const. art. 11, § 2). Where no property has passed to a married woman, and she has merely given her written agreement to pay for certain property, to which she is to acquire title when the deferred payments have been made, her written agreement to make the deferred payments is merely a written promise to pay, and the same, being executed by a married woman alone is void.

Appeal from Circuit Court, Volusia County; M. G Rowe, judge.

COUNSEL

Parkinson, Frederick & Riegle, of Daytona Beach for appellants.

Sholtz Green & West, of Daytona Beach, for appellee.

OPINION

BUFORD J.

In this case Adele M. Morgan entered into a contract with Elva A. Simpson, whereby the former agreed to purchase a certain parcel of land for the agreed price of $27,400. She paid $6,850 cash and gave her written agreement to pay the balance. She did not pay the balance. Adele M. Morgan was a married woman. She had not been adjudged and constituted a free dealer. She owned other property.

After default in payment, Elva A. Simpson filed suit in equity to subject other separate statutory property of Mrs. Morgan to the payment of the balance of the purchase price of the land. The title to the land had remained in Simpson, and had not passed to Mrs. Morgan. There was no benefit to the separate statutory estate of Mrs. Morgan resulting from the contract to purchase the real estate.

If the title to the property involved in the agreement for purchase had passed to Mrs. Morgan and had remained vested in her, Simpson could have subjected that property to the payment of the obligation under authority of the opinion in the case of Citizens' Bank & Trust Co. v. Smith (Fla.) 121 So. 900, and cases there cited; also see Blood v. Hunt (Fla.) 121 So. 886, 893.

As no property passed to the married woman, and she gave only her naked written agreement to make the deferred payments, which agreement, at best, was no more than a written promise to pay, and being executed by the married woman alone, such agreement was void.

In Blood v. Hunt, supra, this court, speaking through Mr. Justice Whitfield, say:

'Section 2, art. 11, provides for five distinct classes of cases in which a married woman's separate property may be charged for debts incurred by her. The remedy afforded by the section will ordinarily operate upon each case as coming within one, and only one, of the enumerated classes of cases. If a case more properly comes within one of the specified classes of cases, the remedy appropriate to that class only should be invoked. See Citizens' Bank & Trust Co. v. Smith, 121 So. 900, filed this day.

'At common law a married woman had, in general, no power to make contracts that would be legally binding upon her personally and consequently at common law a promissory note made by a married woman alone is void; and a mortgage executed by a married woman and her husband upon her separate property to secure the payment eo nomine of a note signed by the married woman alone is a nullity. See Hodges v. Price, 18 Fla. 342. See, also, Lewis v. Yale, 4 Fla. 418; Dollner, Potter & Co. v. Snow, 16 Fla. 86; Equitable B. & L. v. King, 48 Fla. 252, 37 So. 181. This is in general now the law in Florida. Virginia-Carolina Chem. Co. v. Fisher, 58 Fla. 377, 50 So. 504; except as to married women who are duly authorized to become free dealers under the statute, sections 5024-5028, Compiled General Laws 1927; Graham v. Tucker, 56 Fla. 307, 47 So. 563, 19 L. R. A. (N. S.) 531, 131 Am. St....