Warner v. Watson , 35 Fla. 402 ( 1895 )

Mabry, C. J.:

The appeal in this case is prosecuted solely on behalf of Mrs. Helen C. Gr. Warner, and the only property involved in the controversy to which she makes any claim is the Hoosier Saw Mill property.

It is not questioned that the trust deeds were executed to secure the payment of money loaned by Wiser to Booker, and must be regarded as mortgages under our statutes. The first contention for appellants is, that the Hoosier Mill property was held in trust by the husband of Mrs. Warner for her benefit, the same having been paid for with her separate estate, and that Booker who purchased the property at the sale under execution against the husband did .so for his benefit to protect the interest of the wife in the property. In the second place it is insisted that Booker, Watson and Wiser knew before and at the time of the sale of the property under execution, and at the time of the execution of the trust deeds, that the husband, W. S. Warner, had paid for the Hoosier Mill property with the money of Mrs. Warner, and held-it in trust for her benefit. The testimony shows, without contradiction, that Mrs. Warner inherited a considerable estate from her father, the most of which was in the State of Indiana, and that after being converted into money it was deposited by her in bank to the credit of her husband. The latter invested the money, or part of it, in Florida property, and it is clear from the evidence that the Hoosier Mill property, described in the trust deeds, was purchased with money derived from the estate inherited by Mrs. Warner from her father. The answers positively deny that Booker, Watson or Yiser had knowledge before the sale of the Hoosier Mill property under execution, or at the time of the execution of the trust deeds, that the same had been purchased with the money of Mrs. Warner, or was held by her husband in trust for her. Warner took a deed to the property in his own name, and this so appears from the record of the deed in the county in which the property is situated. The Sessinghaus Milling Company obtained a ;judgment against him for some nine hundred dollars, and the Hoosier Mill property was levied upon and sold under an execution emanating from this judgment. Warner had been absent in New York several months when the sale took place, and did not return to Florida for about six months after the sale.. He had information that the mill property was levied upon by virtue of the execution, and was advertised for sale, but did not communicate with Booker, who was in his employment and in charge of the mill property, in reference to the sale, nor did he make any arrangements to prevent the same. Booker bought the property at the execution sale for the amount due on the execution and costs, and obtained a deed to the same; but before doing so, and on the day preceding the sale, arranged to get from Viser the money with which to make the purchase, with the understanding .that a trust deed wuis to be executed on the property to secure the amount loaned. This amount was one thousand dollars, and is represented by the note and trust deed mentioned in the first bill filed. Some three months after executing the first trust deed, Booker obtained an additional loan of fifteen hundred dollars from Viser, and executed another trust deed to secure the same on the Hoosier Mill property and the other property therein described as shown by the second bill filed. It appears that Booker talked with Mrs. Warner about the sale of the property under execution before sale day, and she testified that at first she objected to the purchase by him without the approval of her husband, but learning that Booker could arrange to get the money, and the sale being close at hand, consented to the purchase in his name. She states that Booker agreed to do so for the benefit of W. S. Warner, her husband, and there is testimony showing that Booker stated, at the time and place of sale to a party who expressed a purpose to bid on the property unless it was to be purchased for Warner’s benefit, that the purchase was to be made by him with the understanding that Warner could take the property if he desired to do so. Viser was not present at the sale, and there is no showing that he ever knew before the cross-bill was filed that Booker was to let Warner have the propotry, or that it had been purchased by him with money belonging to his wife. At the time of the sale under execution, Mrs. Warner made no claim to the property, and, as stated in her pleadings, she and her husband were ignorant of her rights in the property. Watson was present when the arrangements were made to secure the money from Viser, and consented to act for him in examining the title to the property, and as trustee. It appears that Watson had information of the statement made by Booker at the time of the execution sale, to the effect that Warner should have the right to take the property if he desired to do so, but' there is no showing that he had any knowledge any interest of Mrs. Warner in the property, or that it had been purchased with money belonging to her. Watson was sheriff and had examined the record before making the levy, for the purpose of ascertaining-whether or not W. S. Warner owned the property, and found the title to be in his name. On Warner’s return from New York some six months after the sale of the property under execution, a settlement was had between him and Booker, and the latter consented to convey, and did convey, the mill property to Mrs. Warner, upon condition that she and her husband would pay the claims of Yiser'secured by the trust deeds. It is admitted that they signed an obligation in writing assuming to pay the Yiser notes when the deed was delivered to Mrs. Warner. Booker testified thac the-money realized from the first note given to Yiser was applied to the judgment and costs in favor of the Sessinghaus Milling Company, except a small amount which was accounted for to Warner, and that the second. sum was borrowed to repair and insure the mill property, and was applied to that purpose, except what went to pay a debt due from Warner to him for a lot of land, and was accounted for in the settlement. The testimony further shows clearly that W. S. Warner had. for several years prior to the time when the mill property was sold under the execution mentioned, dealt with it as his own, and was dealing generally with the property purchased by him as if it belonged to him.. Not only was the title to it taken in his name, but it was exclusively managed by him, and he admits that he did not inform any one in Manatee county that it had been purchased with his wife’s money. Mrs. Warner placed her property in Indiana to the credit of her. Uiusband, and resided with him in Manatee county, and knew that he was holding himself out to the people of the county as the owner of the property. She took no steps to protect her rights in the property, and did •not assert any ownership in it for herself when it was levied on by the sheriff. There is no proof that the -Sessinghaus Milling Company had any knowledge of her interests before obtaining judgment against her husband or at thedime of sale. Under the testimony, the effect of which we have stated as to the material points, the court did not err, in our judgment, in refusing the prayer of the cross-bill, and in decreeing the sale of the property to pay the notes due Yiser and secured by the trust deeds. When a married woman permits her husband to use her money as his own, to invest it in his own name, and thereby obtain credit on the faith of his being the owner of the same, she can not be allowed in equity to interpose her claim to the property so acquired to the detriment of her husband’s creditors. The doctrine of estoppel will apply to her under such circumstances in equity. Hockett vs. Bailey, 86 Ill. 74; Pomeroy’s Equity Jurisprudence, sec. 814; 2 Bishop’s Law of Married Women, sec. 490; Brinkerhoff vs. Brinkerhoff, 23 N. J. Eq. 477; Forbes vs. McCoy, 24 Neb. 702, 40 N. W. Rep. 132; Cook vs. Walling, 117 Ind. 9, 19 N. E. Rep. 532, 10 Am. St. Rep. 17 and notes.

Mrs. Warner, according to her own testimony, consented for Booker to buy the property at execution sale, and the only claim she made is that it was purchased for the benefit of her husband. That she had any interest- in the property, or that the title to it was to be transferred to her, was not disclosed to Booker until after the trust deeds were executed and the revfurn of Warner from New York. In the settlement made with Booker it was expressly agreed in writing-that the payment of the notes held by Viser should be-assumed by Mr. and Mrs. Warner, and though she may not be bound personally on this obligation, yet her husband, who claimed the benefit of the purchase-made by Booker, agreed to pay such .claims upon the conveyance of the property to his wife. The first loan of $1,000 was to save the property from total loss at sheriff’s sale, and Warner expressly consented to the second loan by agreeing to pay it in the settlement made with Booker. Viser, who stands in the position of a mortgagee, is a purchaser to the extent of his interest in the property, and the testimony shows that he was a bona fide purchaser for valuable consideration without notice of any claim or interest on the part of Mrs. Warner. Broward vs. Hoog, 15 Fla. 370.

It is claimed in brief of counsel for appellants that the sale to Booker was void because of his conduct in discouraging another party to bid at the sale. It is sufficient to say that Mrs. Warner has accepted a deed from Booker, and all the interest which he acquired at the sheriff’s sale has been conveyed by him to her.. Booker did not insist on holding the property, but at the instance of Mr. Warner conveyed it to the latter’s-wife.

We find no merit in any of the grounds of contention on this appeal, and the decree appealed from-should be affirmed. Order to be entered accordingly.