Farleigh M. Herald and A. M. Herald v. J. B. Hardin

TERRELL, J. -- This appeal is from a final decree in a foreclosure suit. The appellants are husband and wife and were defendants below. Teh lands described in the mortgage was the separate statutory property of the wife. To the bill of complaint exhibited against them defendants filed their answer setting up as their defense to the foreclosure; (1) Total want of consideration in the execution of the mortgage, (2) That the said mortgage was executed under duress, (3) Set off in the sum of Two Thousand Dollars against complainant, and (4) Improper execution and acknowledgment of the mortgage. After hearing the testimony offered in support of these defenses the chancellor entered his final decree foreclosing the mortgage. Appeal was taken from the final decree. The defense of set off is not urged here so we treat it as abandoned. On the question of want of consideration the record discloses that the note and mortgage brought in question were given by Farleigh M. Herald, appellant, and wife of A. M. Herald, to secure funds that appellant, A. M. Herald, admitted that he had wrongfully taken from appellee, J. B. Hardin, while in his (J. B. Hardin) employ. This Court has repeatedly held that a wife may incumber her separate statutory property to secure a debt made by her husband. It makes no difference whether the consideration for the husband's debt benefits the wife or enhances the value of her separate property. Dzialynski v. Bank of Jacksonville,