Clara Ackley, complainant below, joined by her husband filed her bill of complaint seeking to have cancelled a certain deed from herself and husband to the defendant and to have reinstated a certain lease by said deed transferred and assigned to defendant, and for an accounting. Defendant demurred to the bill for want of equity. The demurrer was overruled and defendant appealed.
The bill alleges that John B. Thornhill conveyed certain lands to S. K. Ackley and took back a purchase-money mortgage; that S. K. Ackley leased the said lands to the defendant for a term of years and thereafter conveyed the same lands to Clara Ackley, his wife, subject to the Thornhill mortgage and subject also to the lease from S. K. Ackley to Defendant; that complainant acquired all the rights of the lessor in the aforesaid lease; that thereafter complainant by and through her husband, agreed to sell the said land to defendant for $10,000.00 cash, upon condition that defendant would assume and agree to pay the Thornhill mortgage; "that your oratrix understood and alleges the defendant was willing to purchase said land subject to such terms and conditions;" that complainant caused to be prepared a certain warranty deed from herself and husband covering the said land and in which deed was contained an assignment and transfer of the lease theretofore made by S. K. Ackley to defendant and also a recital that the defendant assumed and agreed to pay the mortgage held by Thornhill; that this deed was executed and acknowledged by complainant and her husband and name of the grantee left blank and thereupon delivered by complainant to her husband to complete the sale upon compliance on the part of the defendant with the conditions therein named; that S. K. Ackley did deliver said deed and did receive for the complainant the *Page 554 cash consideration of $10,000.00 paid by defendant; that at the time of delivery of the deed in blank, the defendant inserted therein its name as grantee and thereupon without knowledge or authority on the part of complainant so altered and changed said deed as to strike therefrom all reference to assumption by grantee of the Thornhill mortgage; that complainant has never ratified or consented to the alteration in said deed made and offers to credit the cash consideration of $10,000.00 against rents in excess thereof now accrued under the terms of the lease, which she now seeks to have reinstated.
A married woman who, joined by her husband, executes and acknowledges a deed upon her separate property, complete in all respects except that the name of the grantee is left blank, and thereupon authorizes and directs its delivery by her husband to an intended purchaser, who at the time of delivery fills in its name as grantee and accepts the said deed and pays the agreed consideration therefor, will be estopped in a bill brought by her to cancel such deed from claiming that such deed was invalid by reason of the name of the grantee being inserted therein after the execution thereof by her. Thompson on Real Property, Sec. 3978; Ponce de Leon Fountain of Youth Co. v. Day, 90 Fla. 197, 105 So. 814. See also Annotation, 32 A. L. R. 737, et seq.
Complainant contends that as consideration for the deed, she was to have received $10,000.00 cash, and defendant was to assume the Thornhill mortgage.
The deed recites a consideration of $10.00 and other valuable considerations and a cash consideration of $10,000.00 is admitted to have been paid.
The purpose and function of an expressed consideration in a deed is complete when it fixes and identifies *Page 555 itself as either a good or a valuable consideration, and the validity of the deed does not depend on the real consideration being expressed therein. Knighton v. Des Portes Merc. Co.,119 S.C. 340, 112 S.E. 343. And an agreement by the defendant at the time of taking the deed of conveyance to the real estate, that it would assume the mortgage indebtedness upon the property as a part of the consideration of the conveyance need not have been set forth in the deed. Herrin v. Abbee, 55 Fla. 769, 46 So. 183, 18 L.R.A. (N.S.) 907.
It is contended by appellee, Clara Ackley, that striking of the assumption clause in the deed was sufficient alteration of the deed to render it void.
An alteration in a deed, to render it void, even when made by a party to it must be a material one; that is one which causes the deed to speak a language different in legal effect from that which it spoke originally. Murray v. Klinzing,64 Conn. 78, 29 A. 244; Delvin on Deeds, Section 462; Thompson on Real Property, Sec. 3982; Monographic Note, 32 L. R. A. (N.S.) 284, et seq; Stewart v. Preston 1 Fla. 10, 44 Am. Dec. 621.
Clara Ackley was not personally liable for the Thornhill mortgage. Her husband, who was obligated to pay this mortgage, delivered the deed, collected the consideration paid and must be presumed to have known of the assumption clause being stricken from the deed at the time of delivery. The joinder of S. K. Ackley as a party complainant herein, with his wife, is merely pro forma to enable his wife to sue. He does not complain of the deed being altered, nor does he contend that such deed was altered without his knowledge or consent. He seeks no relief in this case.
Striking of a mortgage assumption clause from a deed *Page 556 is not such a material alteration as to cause the deed to speak a language different in legal effect as to the rights of a grantor who was not liable for the mortgage debt, where there remains sufficient consideration to support the deed. Cohen v. Bredfeld, 241, Mich. 173, 216 N.W. 376; Murray v. Klinzing, supra; Thompson on Real Property, Sec. 3986-7.
The order appealed from is reversed with directions to the court below to enter an order sustaining the demurrer of the defendant to the bill of complaint as amended.