Phare v. Randall

• Decision Date: 17 May 1929
• Citation: 97 Fla. 858,122 So. 217
• Parties: PHARE et ux. v. RANDALL.
• Court: Florida Supreme Court

122 So. 217

97 Fla. 858

PHARE et ux. v. RANDALL.

Florida Supreme Court, Division A.

May 17, 1929

Suit by Warner E. Randall against John J. Phare and wife. From part of a final decree for plaintiff, defendants appeal.

Reversed.

Syllabus by the Court

SYLLABUS

Deficiency judgment held erroneous as affecting wife's separate property, property held by spouses jointly or by entireties and husband's homestead (Const. art. 10, § 1; art. 11, § 2). Deficiency judgment, in suit to foreclose spouses' mortgage, describing only power plant and accessories and realty on which located, held erroneous as affecting wife's separate property, under Const. art. 11, § 2 property held by husband and wife jointly or by the entireties, and husband's homestead property under Const art. 10, § 1.

Appeal from Circuit Court, Pasco County; Freeman P. Lane, judge.

COUNSEL

O. L. Dayton and George W. Dayton, both of Dade City, for appellants.

Gibson & Cutts, of Tampa, for appellee.

OPINION

TERRELL, C.J.

In April, 1925, appellee, Warner E. Randall, sold to appellants John J. and Elizabeth Gregory Phare, a certain water works plant with equipment located in the town of New Port Richey, Fla., for the sum of $17,500. Of this amount $2,000 was paid in cash, and the balance evidenced by promissory notes executed on the part of the appellants to appellee, said notes being secured by a mortgage covering the waterworks plant and the realty on which it was located. The first note in the sum of $2,000 was paid as per terms thereof, but, on default in the payment of the second note, as per terms of the acceleration clause in the mortgage contract, appellee brought his suit to foreclose, resulting in a final decree of sale. The property covered by the mortgage was sold for the sum of $5,000 and bought in by the appellee, and a deficiency judgment was entered for the balance in the sum of $9,075.54.

It was also decreed that the said amount of $9,075.54 be a personal judgment against John J. Phare, but as to Elizabeth Gregory Phare it should constitute a lien or charge in equity against her separate property within the meaning of article 2, § 11, of the Constitution of the state of Florida. It appears to be conceded on both sides that the chancellor intended to say section 2 of article 11, as that article deals with married woman's property, while article 2 deals with an entirely different subject-matter foreign to the issues in this case. It is also shown that a portion of the property against which the deficiency decree was entered was the homestead of John J. Phare, and other property thereby affected was owned by John J. and Elizabeth Gregory Phare by the entireties.

Appeal is taken from that part of the final decree affecting the homestead, the joint property or property by the entireties of John J. and Elizabeth Gregory Phare, and the separate statutory property of Elizabeth Gregory Phare.

The notes brought in question were plain promissory notes, and the mortgage...