Hill v. First Nat. Bank

• Decision Date: 26 March 1920
• Citation: 84 So. 190,79 Fla. 391
• Parties: HILL v. FIRST NAT. BANK OF MARIANNA et al.
• Court: Florida Supreme Court

84 So. 190

79 Fla. 391

HILL v. FIRST NAT. BANK OF MARIANNA et al.

Florida Supreme Court

March 26, 1920

Error to Circuit Court, Jackson County; C. L. Wilson, Judge.

Action by Hannah Hill against the First National Bank of Marianna Fla., and H. A. Bowles, Sheriff of Jackson County, Fla Judgment for defendants, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

Constitutional and statutory provisions relating to homestead exemptions are liberally construed in the interest of the family home.

The 'homestead right' is not limited to a mere holding of the legal title to the exempt property 'from forced sale.' It contemplates and includes the beneficial peaceful, and uninterrupted use and enjoyment of such property. Such right is superior to the claims of creditors. The policy of the law concerning it is to preserve the home for the family, even at the sacrifice of just demands, and to protect the family from destitution and want.

The theory of the law with relation to homesteads is based upon the idea that as a matter of public policy, for the promotion of the prosperity of the state and to render independent and above want each citizen of the government, it is proper he should have a home where his family may be sheltered and live beyond the reach of financial misfortune and the demands of creditors who have given credit under such a law.

To allow a defendant the benefits of a plea of set-off in an action brought against him to recover the amount of damage sustained because of his wrongful invasion of plaintiff's homestead right would, if defendant's plea prevail result in the subjection by indirect methods of exempt property to the payment of defendant's demands against the plaintiff, although its subjection thereto directly is not permitted.

One cannot accomplish by indirect means what he is prohibited from doing directly.

The amount of compensation for actual damage sustained because of an unlawful invasion of plaintiff's homestead rights, which he is entitled to recover, partakes of the nature of the homestead property and is exempt.

B. recovered a judgment against H. and another. Execution issued upon such judgment and was levied upon certain personalty and certain realty of H. The property so levied upon was claimed by H. as exempt from seizure and sale for the purpose of satisfying such judgment upon the ground that it was the homestead of H. and exempt from forced sale under the constitution and laws of this state. Upon an application to enjoin the sale, the circuit judge held such property not to be exempt; but upon appeal to this court this order was reversed and the property held to be exempt from forced sale for the satisfaction of such judgment. Thereafter defendant in execution sued the plaintiff in execution to recover certain damages alleged to have been sustained because of the wrongful seizure and sale of such property. In this suit the original judgment was attempted to be set off against plaintiff's claim. Held, that such judgment is not available as a set-off against plaintiff's claim for damages to her exempt property, and that the plea attempting to set off such judgment against plaintiff's claim is not allowable.

COUNSEL D. L. McKinnon, of Marianna, for plaintiff in error.

Paul Carter, of Marianna, for defendants in error.

OPINION

WEST J.

The declaration in this case is, omitting formal parts, as follows:

'The plaintiff Hannah Hill sues the defendant First National Bank of Marianna, Fla., a corporation, and H. A. Bowles as sheriff of Jackson county, Fla., because the said sheriff by the direction of the said bank, levied an attachment and execution in favor of said bank against plaintiff and H. A. Bowles as administrator of John Hill, deceased, on the E. 1/2 of N.E. 1/4, section 8, township 4, range 10 west in which plaintiff owned a two-thirds undivided interest, except one acre, and sold the same under said execution, both defendants well knowing at the time that she was the head of a family living upon the homestead, that it was exempt from forced sale under the Constitution and laws of Florida, notwithstanding plaintiff claimed said exemption, and duly applied to said sheriff in the manner prescribed by law to have the same exempt as her homestead before said sale. That in consequence of said levies and sales she failed to make a crop on said land, as she did not know how soon she might be dispossessed, and was put to much expense, trouble and annoyance to obtain a living for herself and orphan grandchildren that year and the succeeding year, 1917. That she had to employ counsel at great expense to bring suit to have said levies and sales set aside, and to enjoin plaintiffs from making any further sale of said homestead, and said suit was carried to the Supreme Court of the state at great expense to her before it was finally decided and she put to much trouble, loss of time and expense in attending the circuit court and preparing her case, for which she claims $150 damages.

'(2) And for second count plaintiff alleging each and every allegation in the first count says, that said defendants levied said attachment and execution upon one cow and calf of the value of $35 belonging to plaintiff and sold them, notwithstanding she protested against the sale, claiming them as exempt to her. Therefore she claims $300 damages.'

There were pleas of (1) not guilty; (2) no damage to plaintiff as alleged; (3) that the sale of said property was made after a final decree had been entered in the circuit court of Jackson county, in a suit brought by plaintiff to enjoin such sale, in which it was held that the property described in the declaration was not the homestead of the plaintiff and was not exempt from but was subject to sale under the execution levied thereon by the sheriff of the county; (4) denying that defendants knew that plaintiff was, at the time of such sale, the head of a family residing upon said land and that it was exempt from forced sale under the Constitution and the laws of this state; and (5) denying that plaintiff duly applied to said sheriff, before said sale, to have said land exempt as a homestead.

The sixth plea is as follows:

'That at and before the institution of this suit, the plaintiff was indebted to the defendant, the First National Bank of Marianna, Fla., in the sum of $861.32 and interest thereon at 8 per cent. from October 20, 1915, in this, to wit: That the circuit court of Jackson county, Fla., on the 20th day of October, 1915, in the suit of First National Bank of Marianna, Fla., v. Hannah Hill et al., duly rendered a judgment against the said defendants, for the sum of $831.15, and also $30.17, costs of court, and said judgment is of record in Minute Book S, page 42, Minutes of the Circuit Court of Jackson County, Fla., and is wholly unpaid and unsatisfied, and defendants here offer to set off so much of said judgment against plaintiff's claim as may be necessary to cover the same.'

The seventh plea is the same in substance as the sixth, pleading the same judgment as a set-off in slightly different form.

Issue was joined on the first and second pleas. All the other pleas were demurred to. The demurrer was sustained as to the third, fourth, and fifth, but overruled as to the sixth and seventh. There was a replication to the sixth and seventh pleas, to which a demurrer was sustained, and the case proceeded to trial.

At the conclusion of the testimony, the court instructed the jury that----

'The Constitution of the state of Florida exempts from levy and sale a homestead of 160 acres of land without the limits of an incorporated town or city to any head of a family residing in the state. I therefore instruct you that if the sheriff levied the execution on the homestead of the plaintiff, as alleged in the declaration, and sold it under execution in favor of the First National Bank of Marianna, a corporation, it was a trespass, and the plaintiff is entitled to recover all the damages she sustained in consequence of said levy and sale, and also for the value of the cow and calf, if you find from the evidence that the sheriff levied upon and sold them under said execution. You will ascertain from the evidence the amount of damages which the plaintiff sustained, including any attorneys' fees she has paid or contracted to pay in the injunction suit, allowing interest on the amount from the commencement of this suit. You will then deduct this amount from the judgment of the First National Bank of Marianna pleaded as a set-off, and render a verdict in favor of said bank for the balance due upon said judgment.'

There was a verdict accordingly, and judgment pursuant thereto, by which it was adjudged that plaintiff take nothing by this action and that the defendants have and recover from her their costs expended therein. The case is here upon writ of error for review. For convenience we shall in this opinion refer to the parties as plaintiff and defendants.

Several rulings of the trial court are assigned as error, but the principal contentions are that, first, a judgment is not a proper subject of set-off in any case; and, second, that a debt or demand arising under contract is not available as a set-off in an action of tort. There is, however, presented by this record a question more important than either of these. It goes to the right of the defendants to set off the judgment described in defendants' sixth and seventh pleas against the claim for damages described in plaintiff's declaration and is, we think, the decisive question in the case. If defendants' judgment is not available in any event as a set-off against plaintiff's claim as described in her declaration for damages, a decision of the two questions stated...