John W. Price & Wife vs. Venancio Sanchez, 8 Fla. 136

BALTZELL, C. J., delivered the opinion of the Court. This was a claim on the part of a married lady, Mrs. Price, asserting right to a negro boy John, levied upon to pay a judgment against her former husband, Cornelius DuPont. Her father, Manuel Crespo, in the year 1847, conveyed this boy John to his daughter by bill of sale regularly executed. It was not recorded until the 27th day of September, 1851, and this constitutes the principal difficulty and objection to its validity, the law of the State, enacted to secure certain rights to women, providing in its second

section that “married women may hereafter become seized or possessed of real or personal property, during coverture, by request, devise, gift, purchase or distribution, subject to the restrictions, limitations and provisions contained in the foregoing section,” which are “ that the title to the same shall continue separate and independent and beyond the control of her husband, and shall not be taken in execution for his debts, provided, however, that the property of the female shall remain in the care and management of the husband.”' — Pamphlet Laws '45, p. 24; Thompson, 221. The seventh

section provides, that “all the property, real or personal, which shall belong to the wife at the time of her marriage, or which she may acquire in any of the modes hereinbefore mentioned, shall be inventoried and recorded in the County Clerk’s office of the county in which such property is situated, within six months after such marriage, or after said property shall be acquired by her, at th & peril of becoming liable for her husbands debts, as if this act had not been fassedP — Ibid. p. 25 ; Thompson, 221. There is no ambiguity, that we can discover, in this provision.

It is a clear declaration, that in case of a failure to record, the property shall be liable to the husband’s debts as if the act had not beep, passed. What other result is to follow ? — to what is the property to become liable ?— what peril to be subject to, if not this?

The property in contest (the title to or a description of it) in this case, the boy John not having been inventoried and recorded within the time prescribed, but some four years after the date of the deed, it follows that he is liable for the husband’s debts, and that the wife may not have the benefit of this law; it is indeed to her as if it “had not been passed.” There is no proof in the record that the creditor seeking to make the property by his execution, and who is also a mortgagee of the same property, ever had notice of this bill of sale at the time of the creation of his debt or mortgage, so that the effect of notice of the title of the feme is not presented nor adjudicated here.

There may be hardships in this, as in other cases, from non-compliance with its provisions, but where is there exemption in the instance of any law? The same difficulty attends the provisions for the recording of deeds to land. There a purchaser who has paid for land and innocently failed to have his deed recorded, may lose it by its being sold a second time, or from its being subject to the debts of his vendor, yet the wisdom and propriety of such a provision are no longer disputed.

From the relation existing between husband and wife, giving rise to the presumption of ownership by him, persons might be tempted to buy or give credit on the faith of such possession. Frauds might be perpetrated through such means. Hence the true state of the title is appropriately required to be avowed and placed upon the record, so as to be accessible to the entire community. The title or right of the feme is made to depend upon this record and open avowal, and not upon the knowledge of intimate friends or conjecture or mere rumor.

To leave such important rights and interests to the risk of the latter would have been unwise and improvident, so that we perceive neither harshness nor severity in the provision. In other respects, there is a difficulty attending the claim of this feme. Tier father deposes, “ that the husband DuPont and himself were in business together, and he became indebted to him, and in settlement of accounts, he, at the request of DuPont, deeded this boy in dispute and another for saicl debt and in payment of it to said DuPont.” This presents a state of facts so nearly resembling that of Mercer vs.

Hooker, decided by this Court, as scarcely to be distinguishable. In 1850, Hendrick purchased a bay horse of one Hagler, who, at the request of Hendrick, executed a bill of sale to the wife of the latter. The Court say, “to establish the title originally in Mrs. Hendrick, it was not only necessary to prove that the purchase was made for her and with her money, but that the property was inventoried and recorded in the clerk’s office of the Circuit (County) Court within six months after said property was acquired by her.” — Mercer vs. Hooker, 5 Fla., 279. In the case of Craig vs.

Gamble, this decision was reaffirmed. — Ibid., 137. Elsewhere it is held, under a like law, that ‘ mere eyf dence that she, the feme, purchased the property, is not sufficient to give her title. It must be satisfactorily shown that it was paid for with her own separate funds. In the absence of such proof, the presumption is violent that the husband furnished the means of payment.”' — 18 Pennsylvania, 363; 21 do., 319.

A letter addressed by the feme to the execution creditor*, during the time of the creation of the mortgage debt, in which she says, “ she understands there is some difficulty about the debt of her husband, and she is sorry for it, therefore, if her husband does not pay it, she will hold herself responsible for the debt by letting him have a mortgage on her black boy, and she hopes he will rest satisfied,’5 relieves the case of any high moral regard. The account was for goods, provisions, &c., furnished the family, and articles of this kind to the amount of $68 were bought after the date of this letter.

Certainly as to them she could present no proper resistance.

It is true she writes after-wards that “she has reconsidered the matter, and concluded that she will not answer for the debt at all, as she stands in need of all the money she can get, therefore she retracts from her note, as she did it hastily, without forethought,” and alleges afterwards in her answer to a bill in chancery, that “ she was induced to write said paper by her husband, who represented to her that unless she did it he would be put in jail, and that her husband deceived her to induce her to write the paper.” Her second note probably gives the true account in saying that “ she stood in need of all the money she can get.” Certainly there is no evidence as to undue influence on the part of her husband.

We concur fully with the Court below in the opinion that the claimant could not object to defects or irregularities in the judgment or execution. This may only be done as to the former by the defendant on an appeal or writ of error, or in a direct motion to set aside the latter. The statute permits a claim upon oath of a party that “the property belongs to him,” and the jury are to be sworn “ to try the right of property” — that is whether or not the property belongs to claimant. This is the sole and simple issue, and the proof lies upon claimant.

If he succeeds in showing his right, the property is released from the levy — ■ if he fails, the execution proceeds without further obstruction from him. The proceeding is a substitute for the action of trespass or trover at common law, and differs only in its being

summary and not having formal pleadings. Without this statute, a party whose property might be levied upon, would be driven to his action at law against the officer or plaintiff, the execution in the meantime having progressed to completion. It is with regret we again have to remark upon the defective state of this record in having no bill of exceptions. As the judgment must be affirmed for want of error in this respect in any event, we have consented to treat the case as presented by counsel, an earnest request having been made that our views should be given as to the law.

Had the case presented matter of error, we should not have felt justified in reversing it, even under this agreement of the parties. Let the judgment of the Circuit Court be affirmed with costs.