Adams v. Malloy

• Decision Date: 10 December 1915
• Citation: 70 So. 463,70 Fla. 491
• Parties: ADAMS v. MALLOY et al.
• Court: Florida Supreme Court

70 So. 463

70 Fla. 491

ADAMS v. MALLOY et al.

Florida Supreme Court

December 10, 1915

Appeal from Circuit Court, Taylor County; M. F. Horne, Judge.

Suit by W. B. Adams against D. G. Malloy and others. From an order sustaining a demurrer to the complaint, complainant appeals. Reversed.

Syllabus by the Court

SYLLABUS

Under the provisions of section 2462 of the General Statutes 1906 of Florida, a subscribing witness to a conveyance has no authority, as such subscribing witness, to take the acknowledgment of a married woman, and the fact that such subscribing witness acknowledges before some officer authorized to take acknowledgments that the married woman acknowledged the execution of the instrument before him will not avail, even though such subscribing witness acknowledges and sets forth a compliance with all the statutory requirements by the married woman before him.

The words 'alienable' and 'alienating' are used in article 10 of the Constitution in the sense of conveying or transferring the legal title, or any beneficial interest in, the exempt homestead real estate during the life of the owner. The method by which the homestead shall be 'alienated,' i, e., conveyed or transferred, being expressly and specifically prescribed and defined in the Constitution to be by joint consent and by deed or mortgage duly executed by husband and wife when that relation exists all other methods of alienation during the life of the owner are inhibited.

The signing, sealing, and delivery of a deed by a married woman is not sufficient to convey her interest in the land described therein, whether such interest be dower, separate estate, or what not. In addition thereto, in order to render such deed effectual as to her, she must acknowledge the same in accordance with the statutory requirements.

Where a married woman fails to acknowledge a deed to an interest in homestead real estate in accordance with the statutory requirements, even though the husband properly executes and acknowledges such deed, such deed is ineffectual to convey the interest in the homestead real estate, for the reason that there has been 'no joint consent of the husband and wife,' which the Constitution mandatorily requires in order to make a conveyance of the homestead valid and defectual to pass the title thereto.

A conveyance of the timber growing on homestead real estate with the right of ingress and egress for a term of 10 years is a conveyance within the meaning of section 2448 of the General Statutes of 1906 of Florida, and is ineffectual unless executed and acknowledged by both husband and wife.

COUNSEL

W. T. Hendry, of Perry, for appellant.

W. B. Davis, of Perry, for appellees.

W. B. Adams, filed his bill of complaint against D G. Malloy, J. H. Malloy, and G. C. Hughes for the removal of a cloud from the title to certain described lands. The bill alleges:

'I. That the complainant is the owner and in the actual possession of that certain tract of land situate, lying, and being in the county of Taylor, state of Florida, described as follows, to wit:

'South half of northeast quarter of section thirty-one (31) and southwest quarter of northwest quarter of section thirty-two (32), in township six (6) south, range eight (8) east, containing one hundred twenty acres, more or less.

'II. Complainant alleges that the defendants D. G. Malloy and J. H. Malloy, are claiming and asserting title to the timber on said land and the right to work and use, cut, and remove the same for turpentine and sawmill purposes; that such rights are claimed by the defendants under and through a certain paper writing, copy of which is hereto attached and made a part of this bill, marked 'Exhibit A'; that the parties of the second part named in said paper writing are the defendants herein, being therein designated as 'Malloy Bros. & Hughes'; that the defendant G. C. Hughes, by deed dated -----, 19--, undertook to convey a one-third undivided interest in said timber and timber rights to defendants D. G. Malloy and J. H. Malloy, and thereby warranted the title thereto against all persons.

'Complainant alleges that the said paper writing is a cloud on complainant's title to said land; that the same is insufficient to convey any right, title, or interest whatsoever, and is invalid, for the reasons following:

'(a) The pretended description of the land is indefinite and insufficient, in that it does not thereby appear in what county and state the land therein described is located;

'(b) Complainant's said land was then and there at the time said paper writing, Exhibit A, purports to have been executed, the homestead of Andrew J. Green and Rebecca O. Green, his wife; that the said paper writing was not executed by said Rebecca O. Green, for the reason that the pretended execution thereof was not by her acknowledged before an officer authorized to take acknowledgments, and therefore said paper writing was and is insufficient as a conveyance of any interest in said homestead, the same not being the deed of the husband and wife, or joint consent of husband and wife;

'(c) Said paper writing is vague and indefinite as to the rights and interests which it purports to convey.

'That said paper writing, Exhibit A, is void and ought in equity to be canceled as a cloud on complainant's title.

'Wherefore the complainant prays this honorable court to take jurisdiction in the premises and to grant an order and decree decreeing that the said paper writing, copy of which is attached to this bill of complaint as Exhibit A, be canceled as a cloud on complainant's title, and that the clerk of this court be directed to enter in the margin of the record of said instrument that the same has been canceled by the decree of this court, and to grant unto the complainant such other and further relief in the premises as may, from time to time, seem meet and proper.

'May it please your honor to grant unto your orator the state's most gracious writ of subpoena and an order for constructive service to be issued to the defendants, D. G. Malloy, J. H. Malloy, and G. C. Hughes, commanding them that on a certain day they be and appear in this honorable court, then and there, true, perfect, and correct answers make to this your orator's bill of complaint, and to stand to and abide the orders and decree of this honorable court which may, from time to time, be made in the premises, and to grant unto your orator such other and further relief as may to your honor seem meet and agreeable to equity and good conscience, and your orator will ever pray,' etc.

The exhibit referred to in the bill and attached thereto is as follows:

'This indenture, made this 24th day of October, A. D. 1905, between Andrew J. Green and his wife, Rebecca O. Green, of the county of Taylor and state of Florida, party of the first part, and Malloy Bros. & Hughes of the county of Taylor and state of Florida, party of the second part,

'Witnesseth: That the said party of the first part, for and in consideration of the sum of three hundred in full for mill privileges and one hundred dollars advance on turpentine, the receipt whereof is hereby acknowledged, has granted, bargained and sold to the party of the second part, and by these presents do bargain, sell and transfer, unto the said party--of the second part and ----- heirs and assigns, forever, all that certain parcel of land lying and being in the county of ----- and state of -----, and more particularly described as follows:

'South half of northeast quarter of section thirty-one, and southeast quarter of northwest quarter of section thirity-two, in township six south of range eight east, containing one hundred and twenty acres, more or less. All the timber on said lands for turpentine, sawmill, cross-tie or any other purposes, together with the exclusive right to run tramroad or wagon roads or other means of transportation for the term of ten years, said timber to be earnted in turpentine at fifty dollars per thousand boxes. Provided said road privileges shall not apply to fields and timber privileges shall not apply to smaller than ten inches in diameter at stump, balance of turpentine money to be paid when boxed and counted.

'Together with all the tenements, hereditaments and appurtenances, with every privilege, right, title, interest and estate, dower and right of dower, reversion, remainder, and easement thereto belonging or in any wise appertaining: To have and to hold the same in fee simple for ever.

'And the said party of the first part does covenant with the party of the second part that they lawfully seized of said premises; that they are free of all incumbrance, and that a ----- good right and lawful authority to sell the same; and that they will warrant and defend the same against the lawful claims of all persons.

'In witness whereof, the party of the first part have hereunto set their hand and seal the day and year above written.

'Andrew J. Green [Seal.]

'Rebecca O. her X mark Green [Seal.]

'Signed, sealed and delivered in our presence:

'John B. Boyd.

'Arthur S. Green.'

On back:

'State of Florida, County of Taylor.

'I hereby certify that on this 24th day of October, A. D. 1905 before me personally appeared John B. Boyd, one of the subscribing witnesses in the foregoing timber lease, to me well known to be the person subscribing thereto as such witness ----- their free act and deed, for the uses and purposes therein mentioned, and acknowledged that he saw the said lease executed by the said A. J. and R. O. Green, and the said R. O. Green, wife of the said A. J. Green, on a separate and private examination taken and made by and before him, and separately and apart from her said husband, did acknowledge that she made herself a...