Springfield Co. v. Ely , 44 Fla. 319 ( 1902 )

Per Curiam

(after stating the facts.)

This cause was referred by the court to its commissioners for investigation who recommend that the; judgment of the Circuit Court be reversed.

I. The first, third, fifth, seventh and eighth grounds of demurrer may be considered together, and they raise the question whether uader the facts stated in the bill the complainant is entitled to subject to the payment of the debt due it by Henry S. Ely, the certificates of stock issued to defendant March 27th, 1895. If the complainant- possessed the right- in equity to subject to the payment of that debt the stock in the Southern Savings; & Trust Company which had been attempted to- he pledged to secure such debt on November 19, 1892, it is not, and we think can not be successfully denied, that under the allegations of the bill the complainant is entitled to subject to the payment of that debt, the certificates of stock issued March 27, 1895, in substitution for the cretificates originally held, which were assigned in blank and delivered by Mary C. Ely then an unmarried woman, to complainant to be held in lieu of such original certificates and in their stead. The principal contention made here under these grounds of the demurrer is that on N ovemDer 19,1892, Mary C. Ely was the wife of the debtor Henry S. Ely; that the certificates of stock then attempted to be pledged were her separate statutory property, and that under section 1 Article XI, constitution of 1885, the wife’s prpoerty ooiU'ld not be miade liable for her bus-band’s debt except in pursuance of her consent given by some instrument in writing executed- and acknowledged according to tbe law respecting conveyances of real property by married women, and that the instrument in writing executed by Mary C. Ely on that date not being under seal, or attested, by witnesses or acknowledged, or executed by her husband, was insufficient under that section of the constitution to bind her separate statutory property—the certificates of stock—for payment of her husband’s debt. That section reads as- folows: “All property, real and personal, of a wife owned by her before marriage or lawfully acquired afterward by gift, devise, bequest, descent or purchase, shall be her separate property, and the same shall not be liable for tbe debts of her husband without her consent given by some instrument in writing executed according to the law respecting conveyances by married women.” This section does not in term® require tlie instrument in writing to be a deed or mortgage, nor does it require the husband to join in its execution or give his -consent to its execution by the wife, nor does it in terms require the instrument to be .sealed, witnessed or acknowledged. It simply require® the wife’s consent to be given* by some instrument in writing executed- according to law respecting conveyances by married women. At the time of the adoptiofi of the constitution married women could convey their separate statatory real property by deed under seal, attested and acknowledged as required by the statute, provided the husband joined in such conveyance. The only provision of law specially applicable to the conveyance of married women’s separate statutory personal property was thiat the husband and wife should, join in all sales, transfers and conveyances of the property of the wife. No separate acknowledgment of the wife was required, nor was the conveyance required to be witnessed, or sealed, or even to be in writing, unless perhaps in cases where such formalities might be required by law for conveyances of that species of personal property by persons generally. In Tunno v. Robert, 16 Fla. 738, it was held that where the wife conveyed her separate statutory personal property by a written instrument, the statute did not require the husand to join in the execution of that written instrument, but that his assent in writing to the transfer by the wife was sufficient. The statute there construed is still in force. The section of the constitution under consideration is framed with reference to the laws respecting conveyances by married women of personal as well as real property, for both Masses of property are expressly mentioned. The word conveyance is used in a broad sense including conveyances of both real and personal property. The convention in adopting and the people in ratifying that instrument, must he assumed, had in mind the fact that certain formalities were required for the conveyance of married women’s real property, that were not required for the conveyance of their personal property, and that the legislature possessed the power to 'Change -or alter the forms of and requisites for the conveyance of either or both at pleasure. The section under consideration though dealing with both classes oí property and with the liability of both classes of property for the husband’s debts simply requires the consent of the wife to be given by some instrument in writing— the instrument to be executed according to the law respecting conveyances by married women, whatever that law should he at the time the consent is given. The proper interpretation of the constitution requires us to hold that the consent of the wife to be effective to render liable her separate statutory property to her husband’s debts must be m writing, and must be executed according to the. law respecting conveyances by married women appropriate to the conveyance of the class of property to which the consent relates, and that as to the certificates of stock owned! by Mary C. Ely on November 19, 1892, her written consent was not required by the constitution or by any law then in force to' be sealed, attested or acknowledged to render it effective. It is insisted, however, that her husbapd did not 'execute the written consent given by Mary C. Ely, and that this was required by the statute relating to conveyances of personal property by married women. Whether the constitution contemplates that the husband shall join in the execution of the written .consent of the wife in order that such consent mlay be “executed” according to the law respecting conveyances by married women, even where the statute requires the husband to join in the execution of Ms wife’s conveyances, is a question which we shall not now determine, but if it does, it certainly contemplates that such joinder shall he in such form or manner only as will satisfy the statute; and as the parties in the present case have submitted it upon the theory that the husband’s joinder is necessary, we shall consider it from that ¡standpoint. As already pointed out this court in Tunno v. Robert, supra, has held that the husband in order to “join in the sale, transfer or conveyance” of his wife’s property, within the meaning of the statute need1 not execute the written transfer or conveyance with her when it relates to personal property, but may evidence his assent to her conveyance by a separate written instrument. ' This wais done in the present ¡caise, by his written pledge of the stock under the authority given by the written consent of the wife. We are, therefore, of poiniom that the written instruments executed by defendant and her husband were ¡sufficient under the constitution to rendler liable for Henry S. Ely’s debt, the original ¡stock pledged to secure it, and that the substituted stock is likewise liable for that debt. It is claimed, however, that Henry S. Ely exceeded his authority in pledging the original stock in that he pledged it not only fob the $5,865.94 debt mentioned in the written consent of his wife, but also for the payment of any other liability of Hnery S. Ely to the bank due or to become due or thereafter contracted'. If complainant wais attempting to enforce liability for any debt other than the o.ne specifically mentioned in the written consent of defendant the question suggested would become very material, but such is not the case. The fact that Hlenry S. Ely exceeded tiis authority by pledging-the stock for other debts- in addition to the one be was ¡specifically authorized to pledge it for does not in any manner affect the right to charge the stock for the payment of the debt he was authorized to -and did pledge it for.

,11. Another ground of the ¡demurrer insists that Henry S. Ely Is a necessary party defendant. The property sought to be charged now stands in the name of the defeñdant and not in the name of Henry S. Ely, trustee, and before this property wa® substituted for that originally pledged Heniry S. Ely had ceased to be the husband of the defendant. He lilsi alleged to be beyond the jurisdiction of the court and not amenable to its processi, and no relief is pryaed against Mm. While be might be a pnoper party defendant, he is not an indispensable one. It is not essential if bat a judgment be first recovered against him on the debt be owes, in order to subject to payment of that debt the stock pledged, because hi® failure to pay the debt gave complainant a right to subject it immediately. Under these circumstances Henry S. Ely being beyond the reach of the process of the ¡court, complainant was not required to make him a party in order to obtain relief by istubjedfing defendant’s certificates of ¡stock to payment of the debt for which it is liable. Story’s Eq. Pl’d’g. Sec. 78 at seq.

III. It is not insisted' in argument by appellee that the failure to file with the hill the original certificates of stock or copies thereof, made the basis of one ground of the demurrer renders the bill demurrable, and the court thinks it does not.

IV. The fact that the amended bill waived an answer under oath while the original bill required a sworn an swer is not a proper ground of demurrer. Where, however, a ¡sworn answer has been filed in response to the demand made therefor in an original bill, such bill can not properly be amended at least as to the same matters set up in the original bill so as to waive a sworn answer, and upon motion made to strike the attempted waiver from such an amended bill the court should grant it, or it may require such waiver in a proposed amended hill of that character to be stricken before permitting it to be filed. Burras v. Looker, 4 Paige’s Chy. 227; Throckmorton v. Throckmorton, 86 Va. 768, 11 S. E. Rep. 289; Walker v. Campbell, 5 Lea, 354; Wylder v. Crane, 53 Ill. 490; Bingham v. Yeomans, 10 Cush. 58.

The decree of the Circuit Court is reversed with diitaeici- ■ tions to overrule the demurrer and for such further proceedings as may be consistent with ¡equity and this opinion.