As I see it, the record affords a basis for upholding the Chancellor's conclusion that the appelant was estopped from questioning the rights of appellee, Ingalls, from looking to the ring as security for the payment of the loan made by him to appellant's husband. I fully realize the closeness and difficulty of the question involved. The Constitution plainly says that the separate property of a married woman shall be liable for the debts of her husband without her consent given by her in some instrument of writing; but we have held in the case of Abell v. Town of Boynton, 95 Fla. 984, 117 So.2d 507, that constitutional rights, designed for the protection of the property rights of the individual, may be waived, or that the individual may by his conduct estop himself to assert such constitutional rights.
At the time this loan was made, early in November, 1931, Mrs. Gibson was living separate and apart from her husband. She had ceased to live with him in July, 1931, but he was continuing to contribute to her maintenance and support, and when this loan was made the husband was behind in the payments which he was making to his wife for her support. At that time appellant had in her possession the diamond ring in question, which she claims was worth from $3,500.00 to $4,000.00, and which her husband had given to her several years before. Early in November, 1931, appellant's husband, who had just opened a jewelry store, needed money to pay for watches and other merchandise coming in, and asked appellant for the ring to secure a loan which he proposed to get. While being examined in regard to this matter, appellant testified as follows: *Page 226
"A. I loaned it to him in November, November 2, 1931.
"Q. For what purpose?
"A. He was starting in business and he needed some money and he asked for the ring to get a loan in order to start in the business.
"Q. Will you tell the circumstances under which you loaned Mr. Gibson the ring?
"A. Mr. Gibson asked me for the ring so he could borrow some money on it. Said I would get it back; that he didn't want the ring, but it was merely for a loan. I debated quite some time and he said if I didn't give him the ring I wouldn't eat, so I gave it to him.
"Q. Mr. Gibson was supporting you at that time?
"A. Yes.
"Q. And you let him have this ring for the purpose of procuring a loan on it to go into business?
"A. Yes.
"Q. You expected to continue to receive support from him from the operation of the business?
"A. Yes.
"* * *
"Q. He told you he needed the ring to borrow money on, otherwise you wouldn't have let him have it?
"A. That is right."
It thus appears that appellant herself expected to obtain a personal benefit from the loan which she thus made it possible for her husband to secure. At the time she delivered the ring to her husband, thus transferring possession to him, she admits in her testimony that her husband did not have any means of livelihood that she knew of other than the store which he was operating, and it was from the operation of that store, which he opened largely by means *Page 227 of the loan which he procured on the ring, that he was supporting her. After he opened the store and secured the loan, her husband gave her $100.00 in addition to her regular support. In this connection it must be remembered that actual physical possession of corporeal personal property is aprima facie indicia of ownership, and this the wife conferred upon her husband for the known purpose for which he used it — to secure this loan.
The appellant did not become acquainted with the lender, W. W. Ingalls, until a few months after the loan was made. Her husband did not know Mr. Ingalls in the transaction at all, but had dealt solely through Mr. Retalick, whom he had asked to procure a loan for him. He left the ring with Retalick, who delivered it to Ingalls as security for the loan. Thereafter, in January, 1932, appellant's husband procured through Retalick an extension of the maturity of the loan and made an interest payment to Retalick.
Ingalls first knew of Mrs. Gibson in the transaction when in March, 1932, a few months after the loan was made, appellant, Hazel B. Gibson, talked with the pledgee, Ingalls, and asked him if he would sell the ring, letting her apply off the loan and have the balance of the money. Ingalls told her he would like to dispose of it if he could sell it and was agreeable to giving her the amount over the loan, but that he did not want to do anything about recognizing her interest in the transaction without her husband's consent. Mrs. Gibson then went to her husband and procured a letter from him to Ingalls in which letter her husband informed Ingalls that "the entire equity and ownership in said property, subject to your rights as creditor, is now vested in and belongs to Mrs. Hazel B. Gibson, and whenever your loan is paid by her or by anyone else for her, or if there is *Page 228 any surplus from any sale, such property or moneys belong to Mrs. Hazel B. Gibson."
Appellant procured a divorce from her husband on June 7, 1932, and in August, 1932, filed her original bill against her husband and appellee, W. W. Ingalls, predicating her right to have the ring restored to her upon the single theory that usury had been charged by Ingalls upon the loan to her husband and that the transaction was void. Seven months later she filed an amended bill in which it was alleged, in addition to the claim of usury, that the pledged property was not subject to the lien of the pledge to secure the loan to her husband because appellee had not given her consent thereto by instrument in writing. The Chancellor in his final decree found against the appellant on both of these counts.
It would seem that the facts and circumstances above outlined are sufficient to create an estoppel against the married woman which would prevent her from attacking the validity of the pledge here involved, in a court of equity.
There is another well settled principle, which is really a part of the law of estoppel and which has a bearing on this case, namely, that in cases when one of two innocent persons must suffer a loss, he or she who is the cause or occasion of that confidence by which the loss has been caused ought to bear it.
The wife, by her conduct in permitting her husband to so deal with her property as to induce others to believe that he is acting as her authorized agent, may be estopped to deny the agency of the husband to manage and control her separate property where her property is sought to be charged in equity for the price of goods and materials purchased by him for the benefit of such property, as was held in Craft v. American Agri. Chem. Co., 81 Fla. 55, *Page 229 87 So. 41. And she may be bound by her conduct in acquiescing in the sale of her personal property by her husband so as to justify a finding that she had joined in the sale and transfer of title and possession. McNeil v. Williams, 64 Fla. 97, 59 So.2d 562, and cases there cited.
When a wife permits her husband to hold the record title to her realty, or permits him to use her money as his own to invest it in his own name and thereby obtain credit on the faith of his being the owner of the same, she is esteemed in equity to assert her title thereto as against one extending credit to the husband in reliance on such ownership. Russ v. Blackshear, 88 Fla. 573, 102 So.2d 749; Hobbs v. Frazier, 61 Fla. 611, 55 So.2d 848; Weaver-Lughridge Lbr. Co. v. Kirkland, 99 Fla. 427, 126 So.2d 773; Warner v. Watson, 35 Fla. 402, 17 So.2d 654.
In Commercial Credit Co. v. Parker, 101 Fla. 928,132 So. 640, this Court held that:
"Where an owner consigns personal property to a dealer in such goods with express or implied authority to sell, or delivers or consigns to another personal property withindicia of ownership or of authority to sell, but with title reserved in the owner until the payment of the purchase price, a purchaser who pays value for such goods and gets possession thereof without notice of the terms or conditions of the original delivery, consignment or sale, obtains a good title as against the original owner, which will in general prevail against the latter's reserved title."
And in Edgar v. Bacon, 97 Fla. 679, 112 So.2d 107, we said that "the protection which the law throws around married women, by making certain contracts unenforceable against them personally, was intended to operate as a shield of defense and not as a sword of offense."
For the reasons above pointed out, in addition to some *Page 230 of those given in the opinion of Mr. Justice DAVIS, I think the Chancellor's decree should be affirmed.
BUFORD and DAVIS, J. J., concur.