Oates v. Prudential Ins. Co. of America

• Citation: 144 So. 418,107 Fla. 224
• Parties: OATES et al. v. PRUDENTIAL INS. CO. OF AMERICA.
• Decision Date: 14 November 1932
• Court: Florida Supreme Court

144 So. 418

107 Fla. 224

OATES et al. v. PRUDENTIAL INS. CO. OF AMERICA.

Florida Supreme Court

November 14, 1932

Commissioners' Decision.

Bill in equity by the Prudential Insurance Company of America, a corporation under the laws of the State of New Jersey against Virginia Oates and husband, on an agreement in writing for the benefit of the separate property of Virginia Oates. From a decree for complainant, defendants appeal.

Affirmed. Appeal from Circuit Court, Polk County; H. C Petteway, judge.

COUNSEL

Cecil B. Smith and Peterson, Carver & Langston, all of Lakeland for appellants.

McKillop & Hamilton, of Winter Haven, for appellee.

OPINION

MATHEWS C.

The amended bill of complaint alleges in substance that on and prior to February 2, 1925, Everhart and Barnes were the owners of lot 39, in block 4, Cassa Bella subdivision, Lakeland, Fla.; that on said date by written contract for a deed, they sold said lot to A. Y. Oates, with a provision in the contract that title was to be delivered upon payment of $1,400; that thereafter, on October 1, 1926, A. Y. Oates sold his interest in and to said lot to Virginia Oates, and by a written assignment of that date assigned and set over to her all his interest in said lot, said written assignment containing a clause therein that Virginia Oates assumed and agreed to pay the balance of $1,400 due on said lot, which was required to procure the title thereto; that on March 26, 1926, Virginia Oates made a written application to the appellee for a loan of $6,000, in which she stated that she desired the loan for the purpose of 'acquiring a home'; that on April 5, 1927, appellee approved said application for a loan and forwarded its check or draft to Florida Southern Abstract & Title Company, its then disbursing agent, for $6,000, and that said title company deposited said check or draft in the State Bank of Lakeland; that on April 15, 1927, a warranty deed was delivered by Everhart and Barnes pursuant to the written contract for deed and the assignment thereof conveying the fee-simple title to said lot to Virginia Oates; that on April 17, 1927, a partial release of mortgage was executed by Nono Dunklin releasing said lot from the operation and effect of a certain mortgage held by her upon the recited consideration of $830, as agreed in the release clause in her mortgage; that on April 16, 1927, Virginia Oates joined by her husband executed a note to the appellee evidencing the principal sum of $6,000; that on April 16, 1927, Virginia Oates joined by her husband, M. D. Oates, for the purpose of better securing the payment of the principal sum evidenced by the said note, did make, execute, acknowledge, and deliver their mortgage deed to the appellee incumbering the said lot; that on April 21, 1927, the title company disbursed said loan by drawing its check on the State Bank of Lakeland payable to the order of Virginia Oates for the sum of $4,208.40, which check was indorsed by Virginia Oates and delivered to A. Y. Oates, and said sum was paid to A. Y. Oates as part of the purchase price of the lot; that on April 21, 1927, the title company drew its check on the State Bank of Lakeland in the sum of $1,407.10 payable to the order of Zerney Barnes, and said sum was paid to Everhart and Barnes at the direction of the appellant as and for the purchase price of the lot in accordance with the contract for deed and the assignment thereof and the promise of Virginia Oates to pay said sum to acquire title and which was a part of the consideration for the deed from Everhart and Barnes to Virginia Oates; that on April 1, 1927, the title company as disbursing agent drew its check to Groover & Son for $336.37, which was in payment of the commissions on said loan and other incidental expenses; that on April 21, 1927, the title company drew a check to itself for $48.13 in payment of abstract costs and other incidental fees; that all of said checks, aggregating $6,000.00, were duly presented and honored and represented the entire proceeds of the loan of $6,000 made upon an agreement by her in writing and were used by Virginia Oates in the payment of the purchase price and for the benefit of said lot and the buildings and improvements thereon which became her separate statutory property. of the Parker Henderson estate, without such default appellee has elected, under the acceleration clause in the mortgage, to declare the whole sum immediately due and payable. The amended bill prays for the foreclosure of the mortgage, or if it be held invalid and unenforceable as a mortgage lien, then in the alternative, that the premises be charged in equity for the amount of said loan and interest under section 2 of article 11 of the Constitution, as the separate statutory property of the defendant Virginia Oates, a married woman, for the purchase price thereof or upon an agreement in writing for the benefit thereof.

Virginia Oates answered the amended bill and set up that the mortgage was invalid and unenforceable as a mortgage lien, for the reason that she did not appear before the notary public at the time the acknowledgment was taken. M. D. Oates appeared and filed answer to the original bill but failed to answer the amended bill. Decree pro confesso appears not to have been taken against him, but this omission seems not to have been objected to in the lower court.

A special inaster was appointed, testimony taken, and the chancellor entered a final decree in which the mortgage was held and decreed to be invalid and unenforceable as a mortgage lien, because it was not acknowledged by a married woman in accordance with the statutory requirements, but granted the alternative relief prayed for in the amended bill, and charged the premises as the separate property of the married woman for the purchase price thereof under section 2, article 11, of the Constitution, and held that the note and mortgage was an agreement in writing for the benefit of her separate property, and charged said premises for the amount of principal, interest, and costs.

The appellants being dissatisfied with this decree have taken their appeal to this court.

Some time between the date of the contract of purchase from Everhart and Barnes to A. Y. Oates, and April 21, 1927, there was constructed and erected a dwelling house on the lot, which it is claimed cost about $10,000. This dwelling house was erected by A. H. Oates, a contractor. He appears to have been the moving and dominating party in every step of the transaction. There were several small payments made on the loan, and interest was paid up to October 16, 1928. It is admitted that Virginia Oates and M. D. Oates signed the note and mortgage.

It is first contended that it was error to proceed to final decree in the absence of an answer by, or a decree pro confesso against, M. D. Oates.

In Bannon v. Trammell, 96 Fla. 408, 118 So. 167, Sharman v. Bay Shore Investment Co., 99 Fla. 193, 126 So. 282, Waring v. O'Doniel (Fla.) 135 So. 850, and Humphrise v. Hester (Fla.) 139 So. 147, relied upon by appellants, what appeared to be necessary defendants were not served with process, either personally or constructively; they had not appeared nor filed any defense and the cases had never been dismissed as to them. The decisions in those cases turned on the lack of jurisdiction of the court as to the defendants who were not served, rather than upon the failure to enter a decree pro confesso against them.

In Neubert v. Massman, 37 Fla. 91, 19 So. 625, 627, it was said: 'The granting of the final decree in the absence of a decree pro confesso against Edward Well is also assigned as error. The record shows that the defendant Weil was duly served with subpoena, and joined in the demurrers to the original and supplemental bills; and, after the overruling of these demurrers, defaulted in answering the bill on the next succeeding rule day. Objection that decree pro confesso [was not entered] against Weil is made for the first time in this court. Under these circumstances the omission to enter a decree pro confesso against Weil prior to granting a final decree was not reversible error.'

In the case of Welborn v. Sawyer, 68 Fla. 308, 67 So. 83, this court said: 'A failure to enter a decree pro confesso against one defendant may not affect the rights of another defendant, so as to require a reversal of a decree. * * * Though no decree pro confesso appears to have been entered against the defendant the National Mercantile Realty & Improvement Company, which appeared, but apparently did not answer, the defendant Welborn cannot complain of it here for the first time, if at all.' See, also, Rushing v. Thompson's Ex'rs, 20 Fla. 583.

From the foregoing authorities, we conclude that any failure to enter a decree pro confesso as to M. D. Oates is not reversible error. And especially is this so in view of the fact that he has not been deprived of any substantial rights. In fact, he is joined as a party defendant because his wife, Virginia Oates, could not be sued alone. The real appellant here is Virginia Oates, and she cannot take advantage of the irregularity as to M. D. Oates in order to obtain a reversal of the decree as to her.

Next it is urged by appellants that the complainant in a proceeding to charge a married woman's property with an indebtedness, under the provisions of section 2, article 11, of the Constitution, cannot avail itself of an acceleration clause in an invalid mortgage so as to render immediately due and payable an indebtedness evidenced by a note signed by the husband and wife. Appellants rely upon the following from Blood v. Hunt, 97 Fla. 551, 121 So. 886, 890: 'Even if this were a case in which the Constitution authorizes the married woman's separate real and...