Vance v. Jacksonville Realty & Mortg. Co.

• Decision Date: 21 January 1915
• Citation: 69 Fla. 33,67 So. 636
• Court: Florida Supreme Court
• Parties: VANCE v. JACKSONVILLE REALTY & MORTGAGE CO.

67 So. 636

69 Fla. 33

VANCE v. JACKSONVILLE REALTY & MORTGAGE CO.

Florida Supreme Court

January 21, 1915

Appeal from Circuit Court, Duval County; Daniel A. Simmons, Judge.

Suit by the Jacksonville Realty & Mortgage Company, a corporation against Mary B. Vance. From decree for complainant, defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

Although a contract made by a married woman may not be specifically enforced against her by reason of the fact that such contract was not executed or acknowledged by her in accordance with the statutory requirements, such fact does not make the contract void, but upon a sufficient showing, in proper proceedings instituted for that purpose, the money paid to such married woman upon such contract may be required to be returned or decreed to be a lien upon her property.

A demurrer to the whole bill should be over ruled, if the bill makes any case for equitable relief.

COUNSEL J. E. & Julian Hartridge, of Jacksonville, for appellant.

Thomas B. Adams, of Jacksonville, for appellee.

On the 12th day of March, 1913, Jacksonville Development Company, a corporation, as complainant, filed its bill in chancery against Mary B. Vance and her husband, S. C Vance, and Mrs. H. C. Merritt, as defendants, which bill omitting the caption, is as follows:

'Your orator, Jacksonville Development Company, a corporation organized and existing under the laws of the state of Florida, complainant, brings this its bill of complaint against Mary B. Vance and her husband, S. C. Vance, of Duval county, Florida, and Mrs. H. C. Merritt, of Duval county, Florida, defendants, and thereupon your orator complains and says:

'(1) That the defendant Mary B. Vance was, on the 30th day of April, 1912, and still is, a married woman, the wife of the defendant S. C. Vance; that on said date, and at all times since then, the said defendant Mary B. Vance was the owner, as her separate property and estate, of the following described real estate, to wit, lots 2, 3, and 8 in block 10, Riverside, a suburb of the city of Jacksonville, Duval county, Florida; that on said date the said Mary B. Vance and her husband, S. C. Vance, executed unto your orator a written agreement for the purchase of said real estate, copy of said agreement being hereto attached, marked 'Exhibit A,' and made a part hereof; that upon the execution of said agreement (Exhibit A) your orator paid to the said Mary B. Vance the sum of $500 on account of the purchase price of said property, as provided in and by said agreement (Exhibit A); that, by the payment to and receipt by the said Mary B. Vance of the said $500 as aforesaid, the separate property and estate of the said Mary B. Vance was thereby benefited and enhanced and augmented to the extent of the said $500.

'(2) And your orator would further show that thereafter the said Mary B. Vance declined to carry out said agreement (Exhibit A), although your orator was ready, willing, and at divers times offered to perform all things on its part to be done and performed under said agreement; that the said Mary B. Vance declined to execute unto your orator a deed for said property, in accordance with said agreement (Exhibit A), and also retained the said $500 and refused to pay the same back to your orator; that your orator filed a bill for specific performance in the circuit court of Duval county, Florida, against the said Mary B. Vance and husband, seeking the specific performance of said agreement, and seeking to compel said Mary B. Vance and husband to execute to your orator a deed to said property in accordance with terms of said agreement (Exhibit A); that said defendant Mary B. Vance, through her attorney, filed a demurrer to said bill of complaint and insisted thereby that the relief sought by said bill could not be obtained because said bill and copy of said agreement (Exhibit A) did not show that execution of said agreement was acknowledged by the said Mary B. Vance with separate examination; that, on account of there having been no separate examination of the said Mary B. Vance as to the execution of said agreement (Exhibit A), your orator was unable to enforce specific performance of the same.

'(3) And your orator would further show that the defendant Mrs. H. C. Merritt is a widow and holds two mortgages upon the property described as aforesaid--one mortgage for the sum of $10,000, dated August 28th, 1911, recorded in Mortgage Book 42, page 398, records of Duval county; also a mortgage in the sum of $2,500, dated February 28th, 1912, recorded in Mortgage Book 57, page 95, Public Records Duval county, Florida; that the liens created by said mortgages and held by the defendant Mrs. H. C. Merritt are superior in dignity to the claim of your orator against the said separate estate of the defendant Mary B. Vance.

'Forasmuch, therefore, as your orator is without remedy, save in a court of equity, where such things are remedied, your orator prays that said defendants may be required to answer this bill of complaint, but not under oath, answer under oath being hereby waived as particularly as if interrogated thereto, and your orator further prays that an account be taken under the direction of this court, to answer the amount due from the defendants Mary B. Vance and husband, to your orator, and that the said Mary B. Vance be directed to pay such amount within a day short, and in default thereof that the said property, to wit, lots 2, 3, and 8 in block 10, Riverside, a part of the city of Jacksonville, Duval county, Florida, may be sold under the order and direction of this court, subject to the mortgages hereinbefore described, to satisfy such sum as may be found to be due to your orator upon the taking of an account aforesaid.

'And that your honor will grant unto your orator such other and further general relief as equity may require and to your honor may seem meet.

'And may your honor grant unto your orator the state's most gracious writ of subpoena directed to the defendants, Mary B. Vance and S. C. Vance, her husband, of Duval county, Florida, and Mrs. H. C. Merritt, of Duval county, Florida, returnable according to law and the course of this honorable court and your orator will ever pray.'

Exhibit A, referred to in the bill, attached thereto and made a part thereof, is as follows:

'Jacksonville, Florida, Apr. 30th, 1912.

'Received of the Jacksonville Development Company, $500 part payment on lots 2, 3, and 8, in block 10, Riverside. Total purchase price to be $25,000 and the purchaser to move the present house of the seller, now located on lot 2 to lot 7 in the same block. Balance of purchase price to be paid in cash as soon as the title papers been passed on and approved by the buyer's attorney, except the existing mortgage of $12,500 and accrued interest to date, which mortgage the purchaser agrees to assume and pay. Taxes for 1912 to be paid by purchaser. The seller to settle all other incumbrances and liens with the exception of the Riverside avenue paving bill.

Mary B. Vance.

'S. C. Vance.

'Subscribed and sworn to before me this 30th day of April, 1912.

Richard W. Lyman,

'Notary Public, State of Florida, at Large.

'My commission expires Aug. 29th, 1914.'

To this bill Mary B. Vance and her husband, S. C. Vance, interposed the following demurrer:

'These defendants jointly and severally demur to the said bill of complaint and for causes of demurrer show:

'(1) That the complainant has not in and by its bill made or stated such a cause as entitled it in a court of equity to any discovery or relief from or against these defendants or either of them, touching the matters contained in said bill or any such matters.

'(2) The bill of complaint does not show that the five hundred dollars ($500), the subject-matter of said bill, inured to the benefit of the separate estate of Mrs. Mary B. Vance, or in any way gave her separate estate any benefit or advantgage.

'(3) The allegations of the bill do not show in what way the separate estate of Mrs. Mary B. Vance was 'benefited, enhanced and augmented.'

'(4) The contract, being unenforceable for specific performance, is unenforceable for all purposes.

'(5) The bill of complaint does not present such an obligation of a married woman as the Constitution authorizes a court of equity to deal with and enforce.

'Wherefore these defendants dumur to the said bill and all the matters and things therein contained, and pray the judgment of this honorable court whether they or either of them shall be compelled to make any further or other answer thereto, and pray to be dismissed, with their reasonable costs in behalf sustained.'

This demurrer was overruled, and subsequently such two defendants filed the following answer:

'These defendants reserving to themselves all right of exception to the said bill of complaint, for answer thereunto say:

'(1) That they admit the first paragraph of the bill of complaint to be true as therein stated, except wherein it is alleged that by the payment of and receipt by the said Mary B. Vance of said five hundred dollars, that separate property and estate of Mary B. Vance was thereby benefited, enhanced, and augmented to the extent of the said five hundred dollars, and specifically deny that the payment of said money in any way benefited or enhanced or augmented the separate estate of the said Mary B. Vance.

'(2) As to the second paragraph of said bill of complaint the defendants deny that Mary B. Vance declined to carry out said agreement (Exhibit A) to the bill of complaint, and to execute a deed to said property in accordance with said agreement (Exhibit A), and deny that the complainant was ready and willing and at divers times offered to perform all things on its part...