Vance v. Jacksonville Realty & Mortgage Co.

Shackleford, J. (after stating the facts.) — The first assignment which is mainly relied upon for a reversal of the decree, questions the correctness of the order overruling the demurrer interposed to the bill. It is strenuously contended that, as it plainly appears from the bill, the contract could not be specifically enforced against Mrs. Nance, by reason of her coverture, therefore the bill is without equity. In other words, as the appellant contends, “the contract being unenforceable for specific performance, is unenforceable for all purposes.” We had occasion to touch upon this principle in Shields v. Ensign, decided) here at the last term, wherein we held “that the statute does not make the written agreements of a married woman, otherwise executed, absolutely void and non-chargeable upon her estate, but merely that they shall not be .specifically enforced, a much higher equity than the mere charging for a breach of contract.” See our discussion in that opinion. We would also refer to the following cases as holding in effect that, although a contract made by a married woman may not be specifically enforced against her by reason of [45] the fact that such contract was not executed or acknowledge in accordance with the statutory requirements, such fact does not make the contract void, but upon a sufficient showing in proper proceedings institued 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. Pierson v. Lum, 25 N. J. Eq. 390; Moore v. Ligon, 22 W. Va. 292; Burns v. McGregor, 90 N. C. 222. As was well said in the last cited case, on page 225: “The wife may, under an engagement not legality binding upon her, refuse to pay her debt, but if she does so, she cannot keep the property for which the debt was contracted. It would contravene the plainest principles of justice to allow a married woman to get possession of property under an engagement not binding upon her, and let her repudiate her contract and keep the property! She must observe and keep her engagement, or else return the property; if she will not, the creditor may pursue and recover it by proper action in her hands.” This is in line with the intimation in Shields v. Ensign, supra, as also in Goss v. Furman, 21 Fla. 406. See also the discussion in Equitable Building & Loan Association v. King, 48 Fla. 252, 37 South, Rep. 181. We do not think that there is any merit in the contention of the appellant that the bill fails to show that the five hundred dollars paid by the appellee to Mrs. Vance as part of the purchase price for the land described inured to the benefit of her separate estate. The bill 'directly alleges the payment of such amount to Mrs. Vance for such purpose and the demurrer admits that such allegation is true. We are clear that the bill has equity in it, therefore the demurrer interposed thereto was properly overruled. See Boyd v. Gosser. decided here at the last term. [46] The other assignments are based upon the final decree and call for no extended discussion. We think that the proofs adduced by the compláinant sustained- the allegations of the bill and warranted the Circuit Judge in finding that the equities were with the complainant. The decree will be affirmed. Taylor, O. J., and Cockrell, Whitfield and Ellis, JJ., concur.