The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1881-03-15
HEAD-EoTEs OF DECISIONS
SUPREmE COIIRT on RLORxDA.
.yAaaaryE enua. A. ~. nssa.

1URREME COUMT OF FLORIDA.
.JAaaary Ten.a. A. NJ. lsea.
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Catherine b Had, IN her own rikht and Is Ex
ecutrix of the list uIn q Ossian b Hart, de-
ceased. W Edward Il L'Engle, and Theodore
Hartridge, Administrators OF the estate Of
John r: sAndefson, deceased-Appeal from
Duval Circuit Court
WEsTcoTT, j.:
1. Where there has been Q final hearing, au
appeal, reversal Of the decree, and Q remand.
ing Of the cause, a. q general rule, an amendment
to IN answer BY the addition Of facts which, Il
they existed must have been known at the time
Of the fling Of the original answer, win not be
allowed. Such an amendment should never be
allowed In cases where the facts constituting The
defence to Be set up, are not upon the showing
made, rendered highly probable, If not certain,
NOR should Is DO permitted where independent
Of defendants conclusions the facts desired to be
added are not clearly material to the defence
O. Upon hearing upon bill, plea and answer in
support of the plea, every fact stated Ia the bill
and not denied by the plea or the answer In sup
port thereof must be taken a. true, % also, must
the facts sisted in the plea and answer be taken
70 be true
8. The wife having Joined in the execution OF
mortgage deed with her husband, an acknowl-
edgement by her made In the manner prescribed
by statute, that she made herself . party to and
executed the foregoing deed Of mortgage for
the purpose Of conveying and mertgagine all OF
my estate IN sse and tn future in The lands
therein described" Is sufficient to bar her dover
interest
4. The statute authorizing the private exami-
nation Of the wife to bar dover. Is substitute
for the proceeding at common law TO bar dover
BY fine and recovery. As against mortgage
of the fee Of the husband, which mortgage Was
accompanied by q REIMBURSEMENT of the dover
Of the wife, an acknowledgment thus made can
not be impeached by her testimony alone. Such
an acknowledgement may be impeached for
fraud, but the proof to sustain such charge must
be of the clearcst, strongest and most convincing
character.
5. While the rule is not universal that power
to sell includes power to mortgage, yet power
to ALLEVIATE q homestead in prescribed manner
involves the power to mortgage 1t in such man
ner- This power existing both independent OF
and under the Constitution, a fair consistent con-
structlon OF the clause exempting the homestead
from forced sale" must exclude its application
to q sale under q mortgage. A sale under mort
gage Is not forced sale within the meaning of
the Constitution The case of Patterson vs. Tay-
lor and Randall, Is Fla, 337, referred TO and ap-
proved.
9. The wife having Joined in the deed of mort
gage Of the husband conveying the homestead,
and both parties in such deed having expressly
waived all benefit of exemption and homestead
and stipulated that the land conveyed shall never
be claimed TO the prejudice Of the grantees, she
having also upon separate examination &C.
knowledged that she made herself party to the
deed for the purpose of conveying all OF her es-
tate in esse or in future, cannot upon the death of
her husband, either as heir-at-law or as executrix
Of his will, resist sale under decree based upon
said mortgage upon the ground that it was
forced sale, or that the homestead had not been
alienated with the joint consent of the husband
and wife Quere. Whether in case Of tesiate
estate the widow as heir has in any case an
equity to claim the benefit of q homestead ex-
emption enjoyed by the husband.
Decree affirmed
D. C. Dawkins for Appellant
J. T. Walker for Appellees.