this court, but improperly. The orderly and proper course for relators to pursue was to await action in this court on the appeal." Availing themselves of this suggestion, doubtless, the appellees have filed this mo tion to dismiss. Recapitulating, substantially, from that case, all the facts that are necessary for an understanding of the ques tion for decision, we have the following, to wit:

That the matter of dispute between the coproprietors of a tract of timbered lands is whether same is susceptible of partition in kind; plaintiffs' contention being that sale is necessary, and the defendants disavowing the necessity of licitation of the property. That, in the judgment of the court, sale was necessary, and it so decreed, neither plaintiffs nor the defendants express. ing any dissatisfaction therewith, or pros ecuting any appeal therefrom. That notwithstanding the suit was not disposed of, and remained untried, for more than one year after it was filed, the appellant did not intervene, and set out his demands, so as to have them examined and decided contradictorily with the parties plaintiff and defendant, but on the contrary appeared in open court on the day judgment was rendered, and tendered a protest in writing, which is of the following purport viz.: "Joseph L. Le Bourgeois comes into court for the sole purpose of calling its attention to the fact that the plaintiffs in this suit allege in their petition that the land which they seek to partition is the same land now the subject of a suit pending in this court, removed from the first district court for the parish of Orleans in 1859, and numbered 713 on the docket of this court, in which the city of New Orleans and Joseph Soniat Dufossat were plaintiffs, and Joseph L. Le Bourgeois and Felix Becnel were defendants." "This appearer further calls attention to the fact that he is the Joseph L. Le Bourgeois referred to; that the plaintiffs and the defendants in this suit, all of whom claim, in their pleadings herein, to be the successors and legal representatives of the plaintiffs in suit No. 713, cannot obtain a partition of lands, the title to which is shown by the record here to be in contest between themselves and others in another suit pending in this court, without making these others parties to their partition suit; that the plaintiffs in this refuse to make themselves parties to the other pending suit, as they should do, and they so refuse in order to compel this appearer to forego the advantages which he enjoys as a defendant in the other suit, which he is anxious to try, but cannot try, owing to the determination of the plaintiffs and the defendants in this suit not to make themselves parties to the other, as aforesaid. Your appearer refers to the record in the said suit No. 713, and to the record in this suit, to substantiate the averments herein contained; and, reserving all of his rights in the prem

ises, he respectfully files this, his written protest against any further steps being taken herein until all proper parties shall be made as the law requires, and for general relief," -the purport of said protest being that the plaintiffs and defendants cannot obtain a partition of said lands in this suit because the title is shown by the record to be in controversy between themselves and others in another pending suit, and they have not been made parties to the present suit. That the court refused to allow this protest to be filed, and the protestant excepted, and retained a bill of exceptions. Subsequent to the rendition of a final judgment decreeing a partition by licitation, from which neither plaintiffs nor defendants appeal, the protestant obtained and prosecutes this appeal.

The following argument in favor of appellant's right we quote from his counsel's brief, viz.: "Moreover, the sale is to be made at public outcry, after the usual advertisement, in the parish where he lives. Where will he find a purchaser for the prop erty, if he wants to sell it, after these advertisements? Again, if he stands by, and allows the sale to proceed, laches will be imputed to him; and he may lose his property, with no recourse except a suit for damages against persons who may, or may not, be not able to pay them. If he merely protests, but does not enjoin, he will be compelled, after his title is recognized in the pending suit, to sue the purchaser to annul the sale, or to resist a suit in which the purchaser may set up his pretensions, or, if the purchaser attempts to take possession in the mean time, to sue to protect his possession. In any event the judgment can only breed mischief and litigation. It was evidently obtained to stir up new litigation; to compel the appellant to bring a petitory action, and resort to an injunction,-tactics which this court will not countenance. This purpose is patent on the face of the record. No sane person interested in the land (interested, therefore, in having it sold to advantage) would dream of exposing it for sale with such an adverse claim outstanding against it, a claim which makes it unsafe for any one to buy, and impossible to expect the offer of a fair price. Minors claim an interest in it. They are the wards of the court, and the sale should not be permitted, if for no other reason than that their interest requires it to be postponed. * Although

joint owners cannot be compelled to remain in indivision, a partition can only be allowed in the orderly course of judicial proceedings. All parties claiming an interest in the property must be brought before the court. Until they are in court, the partition cannot be decreed. Hewes v. Baxter (La.) 13 South. 817, 821; Murphy v. Murphy (La.) 12 South 496; Farrar v. Newport, 17 La. 348; Willey v. Carter, 4 La. Ann. 56; Rightor v. De Lizardi, Id. 260; Bank v. Choppin, 44 La. Ann. 170, 10 South. 597; Savage v. Williams,

15 La. Ann. 251; Rev. Civ. Code, art. 1329; Code Pr. art. 1024." And, in conclusion, his argument is thus stated, viz.: "We believe the prematurity of the action, and the want of necessary parties, are ample reasons to justify the reversal of the judgment; and we have therefore abstained from pointing out other defects, apparent on the face of the record, which invalidate the proceedings. The appellant prays the motion to dismiss may be denied, the judgment reversed, and the suit dismissed." We think it quite clear that appellant is without right or interest to interfere with the parties in the present litigation, because the judgment does not disturb his title to the property in the least, and a public judicial sale for purpose of effecting a partition inter partes would not cause him any injury. But granting, for the argument, all that appellant contends for, it is striking and evident that it was his plain duty to have intervened, and made his claim in season; and, failing in this, he must take his recourse in some other and independent proceeding. The motion to dismiss is well grounded. Appeal dismissed.

FIRST NAT. BANK OF FLORIDA et al. v. ASHMEAD et ux.

(Supreme Court of Florida. Feb. 28, 1894.) MORTGAGE-DEED ABSOLUTE IN FORM-HOMESTEAD ESTOPPEL.

1. Where husband and wife both join in the execution of a deed absolute in form, covering their homestead, that the wife admits she executed for the purpose of securing an indebtedness of her husband amounting to $5,000, and that the husband also admits that he executed, but that he executed it to secure his indebtedness to the amount of $5,161.08, in the absence of any proof showing that the wife executed it for any larger sum than $5,000, held, that such deed is a valid mortgage upon the homestead covered thereby, to the extent of $5,000, as admitted by the wife.

2. Where a wife joins with her husband in the execution of a deed absolute in form, covering their homestead, that she executes for the purpose, and with the intention and understanding, that it is to secure a certain amount of indebtedness due from her husband, the husband and mortgagee will not be permitted materially to change and alter the transaction to which the wife gave her consent, in executing such deed, by executing between themselves, independently of her, and without her knowledge and consent, a separate instrument or defeasance, as part of such mortgage, by which materially new conditions, and an increased amount, are ingrafted into the mortgage. In such case the deed absolute will be held to be a valid mortgage only for the amount and upon the conditions as understood and consented to by the wife.

3. Where a mortgagor executes and delivers to the mortgagee a mortgage that upon its face, when delivered, appears to have been duly executed by such mortgagor in the presence of two subscribing witnesses, and acquires therewith a valuable consideration from such mortgagee, in the absence of proof showing knowledge to the contrary in the mortgagee, such mortgagor will be estopped from afterwards attempting to defeat such mortgage by showing that it was not in fact executed by him in the

presence of the subscribing witnesses whose names appear upon such instrument. (Syllabus by the Court.)

Appeal from circuit court, Duval county: James M. Baker, Judge.

Action by the First National Bank of Florida and James M. Schumacher, trustee. against William H. Ashmead and Harriet L. Ashmead, to foreclose a mortgage. Defendants had decree, and complainants ap peal. Reversed.

Randall & Foster, for appellants. A. W. Cockrell & Son, for appellees.

TAYLOR, J. This cause comes now be fore this court, upon the appeal of the complainants below, for the second time. Bank v. Ashmead, 23 Fla. 379, 2 South. 657, 665. The former appeal was from an order sustaining pleas filed by the defendants to the complainants' bill for foreclosure of a mortgage executed by both husband and wife, wherein it was set up as a defense that the mortgaged property constituted the homestead of the defendants. After the reversal by this court of the order appealed from in the original suit, the complainants, by leave of the court below, and without prejudice to any of their rights, discontinued their original suit, and filed a new bill against the same defendants. The new bill, for all practical purposes, is substantially the same as the one filed in the original suit, a full statement of which is reported in the case in 23 Fla. and 2 South., supra, except that the new bill, in its allegations as to Mrs. Harriet L. Ashmead's knowledge of the purposes and intent of the instrument signed by her, charges that, "before and at the time of the execution by her of the deed, she was fully informed and had knowledge that said deed was intended to be, and was, a security to the said First National Bank of Florida for the indebtedness, to wit, $5.161.08, mentioned in said paper;" meaning the separate instrument or agreement executed by James M. Schumacher, as the representative of the bank, and William H. Ashmead, whereby Schumacher bound himself to reconvey the property described in the deed upon the payment of $5,161.08. To the new bill the defendants William H. and Harriet L. Ashmead made separate answers. William H. Ashmead, in his answer, admits that on the 4th of March, 1884, he and one Clarence H. Ashmead were indebted to the complainant bank in the sum of $5,161.08 for money loaned and advanced before that day, as set forth in the defeasance executed by him on the same date with the deed. He also admits the execution and delivery by him and his wife of the deed to Schumacher dated March 4, 1884, and he admits the execution by him of the separate agreement for the reconveyance of the property covered by the deed upon his paying the aforesaid sum, but denied that he executed either of said papers

in the presence of the subscribing witnesses thereto, or that he ever acknowledged his signatures thereto in their presence. He avers that the deed referred to in the bill as "Exhibit B" was executed by him for the purpose and with the intent set forth in the separate agreement or defeasance signed by him and Schumacher alone, and referred to in the bill as "Exhibit A;" that both of said writings were signed contemporaneously (Exhibit A being thereby made a part of Exhibit B, the two constituting the written evidence of one transaction), and that he thereby undertook to place the real property described in Exhibit B under a mortgage lien to the said bank, upon the promise made by and on behalf of said bank that said bank would furnish such monetary and other assistance to the firm of Ashmead Bros. as would enable them to tide over their monetary embarrassments, which were then known to said bank; and that without such a promise he would not have undertaken to place the said property under said mortgage lien, but that said bank, after said writings were signed and delivered to it, refused to extend said assistance, whereby the said Ashmead Bros. were compelled to go, and did go, into assignment. He avers, also, that he and Harriet L. Ashmead are husband and wife, and occupied that relationship to each other for some years prior to the 4th of March, 1884, when said instruments were executed, and are citizens of the state of Florida, and that the property upon which a mortgage lien is claimed, and sought to be enforced, by the bill, constituted, on or before said 4th of March, 1884, and has ever since constituted, his homestead, and that of his family, consisting of his said wife and their infant child, upon which they then and now actually resided, as their home; said premises embracing less than half of one acre in the incorporated limits of the city of Jacksonville, and were then and are now, used exclusively as a homestead by him and his family. He, further answering, "denies that said homestead, or any part thereof, in law or in equity, was conveyed to said Schumacher to secure the money indebtedness set up in the bill." He denies that his wife, Harriet L. Ashmead, was fully informed and had knowledge that said deed was intended to be, and was, a security to the said bank for the indebtedness mentioned in said agreement referred to in the bill as "Exhibit A." On the contrary, he avers. on information and belief, that the said Harriet L. had no such knowledge or information; and, on information and belief, he denies that she had any information of the existence, or proposed existence, of said paper, Exhibit A, or of the contents or stipulations thereof, or that the contents and stipulations thereof were agreed upon by her, or proposed to be agreed upon, -and that she had no knowledge whatever that said paper (Exhibit A) was executed, or

to be executed, or that the agreements or stipulations thereof had been agreed upon, or were to be agreed upon, as part of the deed executed by her, or otherwise. He further avers that he requested and urged his said wife to sign said deed, before said Exhibit A was signed, as a means of saving Ashmead Bros. from failure; that she was not informed by him, at or before she signed said deed, of the amount or character of the indebtedness of said firm to said bank; that he did inform her, before she signed said deed, that it was designed as further or collateral security to said bank for the indebtedness of Ashmead Bros., but he did not inform her, before or at the time said deed was signed, nor did she know, nor was she informed by any one, whether the indebtedness was then due, or past due, or when it was to become due. He neither admits nor denies whether any of said indebtedness has been paid or not, but says that on the 24th of April, 1884, his firm, of Ashmead Bros., made a general assignment for the benefit of their creditors; that their assigns took possession of their assets; and that he does not know as to the distribution, if any, made by the assignee of those entitled thereto. As part of his answer, he demurs to the bill upon the grounds: (1) That it is not made certain whether a mortgage lien is sought to be enforced for the alleged indebtedness of $5,161.08. or for that sum and other sums. (2) Said bill is wanting in equity, in this: It does not distinctly appear from the allegations of said bill whether it is claimed that the said respondent, Harriet L. Ashmead, assented to the placing, or contracted for the placing, a mortgage lien of the sum of $5,161.08, or for other or further and other sums. (3) Said bill is wanting in equity.

Mrs. Harriet L. Ashmead, in the first paragraph of her answer, denies that she knew of, or had any information of, the alleged indebtedness of William H. and Clarence H. Ashmead to the First National Bank of Florida in the sum of $5,161.08 on the 4th day of March, 1884, or in any other sum, or on any other day, for money loaned and advanced, or on any other consideration, and denies that she knew on the said 4th day of March, 1884, nor for a long time thereafter had any information, of the existence or contents of the paper or agreement referred to as "Exhibit A." She denies that she, with her husband, in order to secure the payment of said money, and the interest thereon, executed the deed set forth in the bill. On the contrary, she avers that she knew nothing at the time said deed was executed, and for a long time thereafter, of the alleged indebtedness set forth in said paper (Exhibit A), and that she knew nothing of its character or amount, nor as to how, nor on what account, or when, the same accrued, if the same did accrue. She admits that she signed the deed referred to in the bill but avers that she did not sign it

in the presence of the persons, or either of them, whose names are thereto subscribed as attesting witnesses, but that she acknowledged her signature thereto, to both of said subscribing witnesses, separately, and she admits that she acknowledged before Walter Yates, the notary, that she voluntarily signed said deed. She also sets up her marital relationship to William H. Ashmead, and that they resided on the premises as their homestead, and that said premises constituted their homestead. She denies that said "homestead, or any part thereof, in law or in equity, was conveyed to said Schumacher to secure the money indebtedness set up in the bill." She admits that her husband and Schumacher, at the time the deed was so signed by her said husband, and as a part of said deed, entered into the agreement in writing referred to in the bill as "Exhibit A;" but she denies that she was, before or at the time of executing said deed, fully informed and had knowledge that said deed was intended to be, and was, a security to the said bank for the indebtedness mentioned in said paper. She further avers that she did not consent to, nor was she asked to assent to, the stipulations and conditions in said agreement contained. She avers that the only knowledge or information had by her, at or before the time the said instrument was so signed and acknowledged by her, as to the intent of said instrument, and the purpose for which it was executed, other than that furnished by the instrument itself, was communicated by her husband, who informed her, the day the deed was signed by her, that he, the said William H. Ashmead, desired to furnish the said bank additional security for the indebtedness of the Ashmead Bros., and that for this additional security the bank would enable them to avoid failure, which was then imminent but for the said proffered assistance of the bank. The amount of the indebtedness was not communicated to her, but she supposed it was the amount expressed as the consideration of the deed, that is, the sum of $5,000; and she avers that she had no information of the amount of such alleged indebtedness, other than such as she derived, as aforesaid, by inference from the recital of the alleged consideration money, the same being $5,000, contained in the deed itself, and that she was not informed, and she did not know, when the said deed was so signed and acknowledged by her, whether the said supposed indebtedness was then due, or when it was due, or to become due. Embodied in her answer there is also a demurrer to the bill upon the same ground as that contained in the answer of William H. Ashmead. The complainants filed exceptions to both of said answers, and set down the demurrers contained therein for argument. The exceptions to the answers were overruled upon the ground, as stated in the order disposing of them, that a general replication to said answers had been filed. The replication, however, as shown

by the record, was filed on the same day that the court made its ruling upon said exceptions.

A master was appointed to take testimony, and upon the bill, answers, and testimony taken by the master, and by commission for a nonresident witness, the cause was heard, and a final decree rendered in favor of the defendants, dismissing the bill at complainants' cost. From this decree the complainants have appealed.

The material leading facts alleged in the bill, that involve the merits of the controver sy between the parties, are (1) that William H. Ashmead and his copartner, Clarence H. Ashmead, were indebted to the complainant bank in the sum of $5,161.08; (2) that, in order to secure the payment of this debt, William H. Ashmead and Harriet L. Ashmead, his wife, by deed absolute on its face, in which a consideration of $5,000 is recited, conveyed the property described therein to the complainant James M. Schumacher, who took such conveyance really in trust for the bank to whom the indebtedness was due. Neither the amount nor the justness of the alleged indebtedness is disputed in any way, but is practically admitted. The execution and delivery of the deed absolute in form, but for the purpose and with the intention of securing the indebtedness of the Ashmead Brothers to the bank, are also admitted. These admissions made by both of the defendants, under our statute declaring what shall constitute a mortgage (McClel. Dig. pp. 765, 766; Rev. St. §§ 1981, 1982), makes this deed absolute in form a mortgage, unquestionably. The effort of the defendants, however, to avoid its enforcement, is to show that the conditions upon which the deed was given were contained in the separate agreement executed by William H. Ashmead and James M. Schumacher, in which Mrs. Ashmead did not join, and by which Schumacher obligated himself to reconvey the property contained in the deed to William H. Ashmead, or to whomsoever he should dictate, upon his payment, by the 5th of March, 1885, of the indebtedness of $5,161.08, and interest thereon at the rate of 8 per cent. per annum, payable semiannually, and $100 for attorneys' fees accrued by reason of their default in the payment of their past-due notes, and for the drafting of the papers connected with such mortgage; and because Harriet L. Ashmead had no knowledge of this separate agreement, constituting a part of the mortgage, at the time she executed the deed, or of the actual amount of the indebtedness that the deed was intended to secure, or of the time it accrued, or was to accrue, or of the stipulation to pay the $100 for attorneys' fees, or of any of the terms of such separate agreement. And both herself and her husband. now seek to repudiate their deliberate act in executing the deed upon the ground that the property mortgaged consisted of the homestead of William H. Ashmead, that, under

the constitution, could not be alienated without the joint consent of husband and wife, and that because Mrs. Ashmead was not a party to the defeasance that constituted a part of the mortgage, and had no knowledge thereof when she assented to such alienation of the homestead by her execution of the deed, the whole transaction is void to effectuate a mortgage or alienation of such homestead, because of the want of her sanction and consent to the entire transaction. We think that it is true that where husband and wife join in the execution of an instrument that in form is a deed absolute covering their homestead, but that is executed and delivered with the intent and for the purpose of securing the payment of an indebtedness of the husband, that the wife is led to believe, when she assents to such mortgage, amounts only to a given sum, the mortgagee and husband would not be permitted materially to change and alter the transaction to which the wife gave her consent in executing such deed, by the execution between them, independently of her, of a separate instrument or defeasance, as a part of such mortgage, by which materially new conditions, and an increased amount, of which she had no information or knowledge, were ingrafted into the mortgage. To permit such a transaction would be to consummate a fraud upon the rights of the wife, and would be, pro tanto, an alienation of the homestead at the behest of the husband alone, without the consent of the wife, and contrary to the mandate of the organic law. Bank v. Rosenthal (Cal.; filed Dec. 28, 1892) 31 Pac. 849. But we do not think that her failure to sign, or become a party to, the separate agreement or defeasance executed by her husband and Schumacher, has the effect of vitiating the entire transaction. Such separate agreement or defeasance is void, as to her, only in those features thereof that were not included in her understanding of the transaction at the time she executed the deed. In the former decision of this case, it was held that parol evidence is admissible, in equity, to show that a deed of conveyance, absolute on its face, was intended as a mortgage, and that, where it is shown that such a conveyance has been executed to secure the payment of money, equity will treat it as a mortgage. The bill alleges that the deed, absolute on its face, executed by both of the defendants, was given as a security for debt; and both of the defendants, in their answers, admit this to be true. So far as William H. Ashmead is concerned, the deed is admitted to have been executed to secure $5,161.08, but Mrs. Ashmead admits that she executed it to secure a debt for $5,000 only. The deed absolute itself recites the latter sum as being the consideration upon which it was executed. With this admission on Mrs. Ashmead's part, taken in connection with the allegations of the bill and the contents of the deed, a valid mortgage is made out, binding upon both of

them, as husband and wife, to the extent of $5,000, independently of the agreement or defeasance to which Mrs. Ashmead was not a party; and the facts, admitted to be true that constitute it a mortgage, could have been established by parol. The bill alleges that Mrs. Ashmead had full knowledge of the separate defeasance executed by her husband and Schumacher, and of the contents thereof, and that she executed the deed absolute with the knowledge that it was to secure the payment of the amount set out in such defeasance, and upon the terms and conditions therein expressed. She denies this in her answer, but admits that she executed the deed to secure a debt of her husband that she thought amounted to $5,000, because that sum was recited as the consideration in the deed signed by her. To prove that she did have knowledge of the contents and terms of the defeasance, the appellants (complainants below) introduced only the depositions of John T. Walker, who was the attorney that conducted the negotiations culminating in the execution of the mortgage involved herein, representing in such negotiations both Ashmead and the bank, and who drafted the deed and the defeasance. While he testifies that he had two interviews with Mrs. Ashmead, one of them before, the other after, the execution of the deed by her,-in both of which he informed her fully of the transaction, yet he does not state that she ever saw or knew of the defeasance; and, too, he swears that it was his understanding that the deed was given to secure the sum of $5,000 only. That he told Mrs. Ashmead that her husband's debt to the bank was greater than $5,000, but (he says) that the bank was willing to take the security for that sum. We are without proof, then, to sustain the mortgage, as against Mrs. Harriet L. Ashmead, except to the extent of $5,000, as admitted in her answer. The overplus of $161.08, above that amount, mentioned in the defeasance, and the provision in the defeasance for the payment of attorney's fees in the event of foreclosure, are not proved to have been incorporated into the transaction with her knowledge and consent, and are therefore not binding upon her.

William H. Ashmead is estopped in equity from attempting, as he seeks to do in his answer, to avoid the effect of his acts in executing and delivering the mortgage, upon the ground that his execution thereof was not done in the presence of witnesses. The record shows that he delivered this mortgage to the bank in its executed condition; such execution of it by him having been apparently done in the presence of two subscribing witnesses, the genuineness of whose signatures is not questioned. It appears, also, that by means of this mortgage, so executed with all apparent formality, he acquired from the bank an extension of time for the payment of the debt secured thereby. To permit him now to take advantage of his own