The Chief-Justice
delivered the opinión of the court.
We first consider the, third ground assigned for error in the proceedings and decree, which is that the mortgage is [766]*766on the separate property of the wife to secure her note, which note is void as to her, and no proper allegations are made in the bill to show that her property should be charged.
This objection is not sustained by the record. The note was signed by her and by her husband. Prima facie, therefore it is a valid- note of the husband. The act of February 4,1885, (Th. Dig., 179,) provides that a married woman may sell, transfer and mortgage her real estate of inheritance as if she were sole and unmarried, her husband joining therein. This would seem to settle the question that she may bind her real estate to secure any valid indebtedness of herself and her husband. The cases of Dollner, Potter & Co. vs. Snow, 16 Fla., 86, and Hodges and Wife vs. Price, 18 Fla., cited by appellants’ counsel, do not apply to the circumstances of this cáse. The testimony and the answers of the defendants show that the note and mortgage were given to secure the purchase price of property conveyed to the wife.
The equitable rule is that any debt contracted by a married woman for the benefit of her separate estate or property is valid to the extent that' it may be enforced out of any such estate or property, whether expressly secured by mortgage or not. Merritt vs. Jenkins, 17 Fla., 593, and Blumer vs. Pollak & Co., decided at the present term, and see Story’s Eq. Jur., §1400, et seq.
The sixth error alleged is that the court overruled the defendant’s objection to the introduction of the copy of the mortgage in evidence in lieu of the original under the circumstances of the case. The error, -however, if any, was cured by the subsequent production of the original in evidence. . .
The. seventh error is that the decree charges the married woman personally by substantially entering a judgment [767]*767against her to all intents'and purposes a judgment at law, and in decreeing a limit of the equity of redemption to eight days from the decree.
This is an erroneous construction of the decree. It charges only the mortgaged property with the money due, on the note and mortgage, and is not in terms, or in effect,, a general judgment against her. It decrees that the defendants pay the money due in eight days, and if not so paid that the property may be sold to pay it, (in the usual form ;) and, further,- that the .defendants be forever barred of all equity of redemption, &e.
This decree is not i'n any sense such a judgment as that an execution or other process can issue thereon against any property except that which is expressly mortgaged. The bar of the rights of redemption, &c., are effective only after the sale.
It is further urged that this debt is not the debt of Mr. Mattair, but that of Mrs. Mattair, he having signed it only “ to consent,”, yet the decree concludes with a provision that execution may issue against Mattair alone for any deficiency after sale of the mortgaged property.
This note is the note of Mattair, and he is personally liable on it, even if Mrs. M. is not so liable; that it was given to “ consent,” or for the benefit , of his wife, does not exempt him from such personal liability.
It is urged also that the bill does not pray a personal judgment for the deficiency, and, therefore, the decree in charging him with the, deficiency is wrong. But it is not necessary that a prayer for a judgment, or execution for any deficiency, shall be made by the bill. The bill concludes with a prayer for other and further relief generally, and this is sufficient. Rule 89, regulating the practice in equity, authorizes a decree for any such deficiency, and provides that execution may issue therefor.
[768]*768As to the several grounds assigned for a .reversal of; the decree other than those ..mentioned, .to-wit: the sustaining of the several exceptions to the answer of the defendants ; that the court did not give proper weight to the evidence and the answers, nor to the fact of the drunkenness of Mattair and, his mental incapacity ; they will be disposed of by what follows. It is proper to remark, however, that all the testimony of the defendants as to their transactions and conversations with Alexander before, at the time and after the conveyance and the note and mortgage were executed, is illegal and improper tobe considered as evidence of such matters. They are prohibited by law from giving such testimony, Alexander being dead, unless the administrator has testified in relation thereto. All such testimony should be struck out by the court. See Chap. 1988, Sec. 1, Laws of 1874.
If Mr. Mattair was in such a state of intoxication at the time of the giving of the mortgage that he was incapable of transacting business intelligently, the contract on his part was voidable. Contracts by such persons are considered by the court- in the United States as voidable, not void. Chitty on Contracts, 10 Am. Ed., 154, and notes citing a large number of authorities.
In this case, six months after the giving of the note and mortgage, the defendants voluntarily paid the interest due thereon. . They are- in possession of the lot conveyed to them by Alexander in consideration of the note and mortgage. They have not- tendered a reconveyance of the lot, or done any act toward rescinding the bargain. If the defences set up shall be allowed, where are the parties ? The bill is dismissed, thereby denying the right to foreclose the mortgage, and the defendants in the possession and enjoyment of the property conveyed to them, and which they have not paid for at the contract price or any other price. [769]*769And this demonstrates that these defendants should not be allowed to interpose by answer such defences as they have sét up to the foreclosure of the mortgage.
' Who seeks equity mtist do equity. The defendants cannot be allowed to keep the property obtained by the transaction and fail to fulfill their agreement to pay for it. Gore vs. Gibson, 13 M. & W., 623, 627.
The remedy of the defehdants was to file a cross-bill or an original bill after tendering a reconveyance and otherwise doing equity, and obtaining a rescission of the entire contract. The agreement being voidable is yet binding upon the parties until set' aside by proper proceedings. In Eddleston vs. Collins, 17 Eng. L. & Eq. R., 296, 300, this language is used: “ The plaintiff’s security is, I must now assume, well created by deed, and I rather apprehend such a security, if impeached at all, must be impeached by cross-bill. The security is good until impeached, and to allow the defendant to impeach it by her answer, and by evidence on her part, would be to make a decree in favor of the defendant upon the application of the plaintiff. If the defendant were at liberty thus to impeach the plaintiffs title, she must equally be at liberty wholly to subvert it; and the consequence of allowing this would be that plaintiffs coming to this court for relief might find themselves in a position of being decreed to convey to the defendants.”
This court has several times enforced the rule that affirmative relief cannot be granted to a defendant against a plaintiff upon the mere answer of the defendant. See Wooten vs. Bellinger, 17 Fla., 298.
As to the matters set up by the answer of Mrs.
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The Chief-Justice
delivered the opinión of the court.
We first consider the, third ground assigned for error in the proceedings and decree, which is that the mortgage is [766]*766on the separate property of the wife to secure her note, which note is void as to her, and no proper allegations are made in the bill to show that her property should be charged.
This objection is not sustained by the record. The note was signed by her and by her husband. Prima facie, therefore it is a valid- note of the husband. The act of February 4,1885, (Th. Dig., 179,) provides that a married woman may sell, transfer and mortgage her real estate of inheritance as if she were sole and unmarried, her husband joining therein. This would seem to settle the question that she may bind her real estate to secure any valid indebtedness of herself and her husband. The cases of Dollner, Potter & Co. vs. Snow, 16 Fla., 86, and Hodges and Wife vs. Price, 18 Fla., cited by appellants’ counsel, do not apply to the circumstances of this cáse. The testimony and the answers of the defendants show that the note and mortgage were given to secure the purchase price of property conveyed to the wife.
The equitable rule is that any debt contracted by a married woman for the benefit of her separate estate or property is valid to the extent that' it may be enforced out of any such estate or property, whether expressly secured by mortgage or not. Merritt vs. Jenkins, 17 Fla., 593, and Blumer vs. Pollak & Co., decided at the present term, and see Story’s Eq. Jur., §1400, et seq.
The sixth error alleged is that the court overruled the defendant’s objection to the introduction of the copy of the mortgage in evidence in lieu of the original under the circumstances of the case. The error, -however, if any, was cured by the subsequent production of the original in evidence. . .
The. seventh error is that the decree charges the married woman personally by substantially entering a judgment [767]*767against her to all intents'and purposes a judgment at law, and in decreeing a limit of the equity of redemption to eight days from the decree.
This is an erroneous construction of the decree. It charges only the mortgaged property with the money due, on the note and mortgage, and is not in terms, or in effect,, a general judgment against her. It decrees that the defendants pay the money due in eight days, and if not so paid that the property may be sold to pay it, (in the usual form ;) and, further,- that the .defendants be forever barred of all equity of redemption, &e.
This decree is not i'n any sense such a judgment as that an execution or other process can issue thereon against any property except that which is expressly mortgaged. The bar of the rights of redemption, &c., are effective only after the sale.
It is further urged that this debt is not the debt of Mr. Mattair, but that of Mrs. Mattair, he having signed it only “ to consent,”, yet the decree concludes with a provision that execution may issue against Mattair alone for any deficiency after sale of the mortgaged property.
This note is the note of Mattair, and he is personally liable on it, even if Mrs. M. is not so liable; that it was given to “ consent,” or for the benefit , of his wife, does not exempt him from such personal liability.
It is urged also that the bill does not pray a personal judgment for the deficiency, and, therefore, the decree in charging him with the, deficiency is wrong. But it is not necessary that a prayer for a judgment, or execution for any deficiency, shall be made by the bill. The bill concludes with a prayer for other and further relief generally, and this is sufficient. Rule 89, regulating the practice in equity, authorizes a decree for any such deficiency, and provides that execution may issue therefor.
[768]*768As to the several grounds assigned for a .reversal of; the decree other than those ..mentioned, .to-wit: the sustaining of the several exceptions to the answer of the defendants ; that the court did not give proper weight to the evidence and the answers, nor to the fact of the drunkenness of Mattair and, his mental incapacity ; they will be disposed of by what follows. It is proper to remark, however, that all the testimony of the defendants as to their transactions and conversations with Alexander before, at the time and after the conveyance and the note and mortgage were executed, is illegal and improper tobe considered as evidence of such matters. They are prohibited by law from giving such testimony, Alexander being dead, unless the administrator has testified in relation thereto. All such testimony should be struck out by the court. See Chap. 1988, Sec. 1, Laws of 1874.
If Mr. Mattair was in such a state of intoxication at the time of the giving of the mortgage that he was incapable of transacting business intelligently, the contract on his part was voidable. Contracts by such persons are considered by the court- in the United States as voidable, not void. Chitty on Contracts, 10 Am. Ed., 154, and notes citing a large number of authorities.
In this case, six months after the giving of the note and mortgage, the defendants voluntarily paid the interest due thereon. . They are- in possession of the lot conveyed to them by Alexander in consideration of the note and mortgage. They have not- tendered a reconveyance of the lot, or done any act toward rescinding the bargain. If the defences set up shall be allowed, where are the parties ? The bill is dismissed, thereby denying the right to foreclose the mortgage, and the defendants in the possession and enjoyment of the property conveyed to them, and which they have not paid for at the contract price or any other price. [769]*769And this demonstrates that these defendants should not be allowed to interpose by answer such defences as they have sét up to the foreclosure of the mortgage.
' Who seeks equity mtist do equity. The defendants cannot be allowed to keep the property obtained by the transaction and fail to fulfill their agreement to pay for it. Gore vs. Gibson, 13 M. & W., 623, 627.
The remedy of the defehdants was to file a cross-bill or an original bill after tendering a reconveyance and otherwise doing equity, and obtaining a rescission of the entire contract. The agreement being voidable is yet binding upon the parties until set' aside by proper proceedings. In Eddleston vs. Collins, 17 Eng. L. & Eq. R., 296, 300, this language is used: “ The plaintiff’s security is, I must now assume, well created by deed, and I rather apprehend such a security, if impeached at all, must be impeached by cross-bill. The security is good until impeached, and to allow the defendant to impeach it by her answer, and by evidence on her part, would be to make a decree in favor of the defendant upon the application of the plaintiff. If the defendant were at liberty thus to impeach the plaintiffs title, she must equally be at liberty wholly to subvert it; and the consequence of allowing this would be that plaintiffs coming to this court for relief might find themselves in a position of being decreed to convey to the defendants.”
This court has several times enforced the rule that affirmative relief cannot be granted to a defendant against a plaintiff upon the mere answer of the defendant. See Wooten vs. Bellinger, 17 Fla., 298.
As to the matters set up by the answer of Mrs. Mattair that she was induced by the golden visions held before her by Mr. Alexander as to the value she would realize for her whole property, and that his friend or himself would buy it from her at some, future day, and that the property [770]*770bought by her under such influence was not worth what she had agreed to pay for it, the same rule is applicable. It was held in Sanborn vs. Osgood, 16 N. H., 112, (cited by Jones on Mort., §625,) that a fraudulent misrepresentation as to the value of property sold by a mortgagee, in payment of which he has taken a mortgage, does not avoid the mortgage if there is any value at all in the property sold. The property, which was the subject of the sale and mortgage, must first be restored to the vendor, or a reconveyance tendered, before the mortgage can be rescinded.
Where a party seeks to rescind a contract for fraud he must ask the aid 'of the court in a reasonable time, and be in a situation to restore to the opposite party whatever he may have received from him. 2 Gilman, 650.
In view of the circumstances disclosed in the record, we think the decree should be so modified as to direct the sale of the west half of the lot before selling the east half, which it seems is the home of the family, if the defendants so desire.
The decree is affirmed, and the cause remanded with directions that the court order the sale of the west half of the mortgaged premises before selling the east half thereof, in case the defendants so desire. The costs of this appeal and proceedings to be paid by the appellants.