American Central Ins. Co. of St. Louis, Mo. v. Whitlock

• Decision Date: 13 January 1936
• Citation: 165 So. 380,122 Fla. 363
• Parties: AMERICAN CENTRAL INS. CO. OF ST. LOUIS, MO. v. WHITLOCK.
• Court: Florida Supreme Court

165 So. 380

122 Fla. 363

AMERICAN CENTRAL INS. CO. OF ST. LOUIS, MO. v. WHITLOCK.

Florida Supreme Court

January 13, 1936

Rehearing Denied Feb. 10, 1936.

En Banc.

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by W. T. Whitlock against the American Central Insurance Company of St. Louis, Mo. To review the judgment, defendant brings error.

Affirmed.

ELLIS P.J., and BROWN, J., dissenting.

COUNSEL Hampton, Bull & Crom, of Tampa, for plaintiff in error.

Whitaker Brothers, of Tampa, for defendant in error.

OPINION

BUFORD Justice.

The writ of error brings for review judgment in favor of the defendant in error, plaintiff in the court below.

This is the second appearance of this case in this court. See 107 Fla. 13, 144 So. 412, 414. In that opinion we said:

'The circuit court may have overlooked the possible liability of Whitlock on his assignment of the note and mortgage and a consequent insurable interest of Whitlock in the mortgaged property insured, under the principle stated in 1 Cooley's Briefs on Insurance (2d. Ed.) p. 254, 290 that, 'though the mortgagee has assigned the notes and mortgage, his liability on his assignment gives him an insurable interest.' See Joyce on Insurance, § 1042; Mahoney v. State Ins. Co., 133 Iowa, 570, 110 N.W 1041, 9 L.R.A. (N.S.) 490. But it is not shown that the plaintiff, Frances McBride, was in privity with or had a right of action against the insurer; and for this reason alone the judgment of the civil court of record against the defendant in her favor was properly reversed by the circuit court.' $The facts in the case appear to be that the note and mortgage above referred to were instruments executed by Edith Callihan and Jobe Callihan on the 7th day of January, 1926. The note was in the following language, to wit:

'$3,000.00

Tampa, Fla.

January 7, 1926.

'Two years after date I, and each maker severally promise to pay to the order of W. T. Whitlock and Ruby B. Whitlock Three Thousand Dollars at the First National Bank of Tampa, Florida, for value received, with interest from date at the rate of ten per cent per annum until paid. Payable semiannually.

'Now should it become necessary to collect this note through an attorney, either of us, whether maker, security or endorser on this note, hereby agrees to pay all costs of such collection including a reasonable attorney's fee.

'The drawers and endorsers severally waive presentment for payment, protest and notice of protest and non-payment of this note.

'Due January 7, 1938.

'Edith Callihan

'Jobe Callihan'

The note bore the indorsement on the back thereof as follows:

'For ten dollars and other valuable consideration we hereby sell, assign, transfer and deliver to Carl Baughman all our rights, title and interest in and to the within note, this 26th day of January, 1926.

'W. T. Whitlock.

'Pay to Francis McBride without recourse Feby. 26/26.

'Carl Baughman.'

The mortgage was executed by the Callihans to W. T. Whitlock and Ruby B. Whitlock.

It is contended here that W. T. Whitlock in assigning the note and mortgage to Baughman only assigned a half interest in the note and mortgage. This contention, however, is not tenable. At the time the note and mortgage were made, executed, and delivered, W. T. Whitlock and Ruby B. Whitlock were husband and wife and, therefore, their ownership of the note and mortgage when the same were delivered constituted an estate by the entireties.

'A limitation of property capable of being held by entireties, made to a husband and wife without specifying how they are to take, is construed as meant to limit it to them by entireties. In order that a conveyance may create a tenancy by the entireties, it is not necessary that the grantees be described as husband and wife or their marital relation referred to.' Citing these cases: Hulett v. Inlow, 57 Ind. 412, 26 Am.Rep. 64; Thornburg v. Wiggins, 135 Ind. 178, 34 N.E. 999, 22 L.R.A. 42, 41 Am.St.Rep. 422, McLaughlin v. Rice, 185 Mass. 212, 70 N.E. 52, 102 Am.St.Rep. 339; Appeal of Lewis, 85 Mich. 340, 48 N.W. 580, 24 Am.St.Rep. 94. So a deed to a man and woman vests title in them as tenants by the entireties if they are husband and wife, though the grantees did not have any intent what technical estate should be conveyed to them. Citing: McLaughlin v. Rice, 185 Mass. 212, 70 N.E. 52, 102 Am.St.Rep. 339; 13 R.C.L. 1111, § 132.' Emphasis supplied.

In 18 Am.Dec. 378, note, we find:

'A tenancy by entireties arises whenever an estate vests in two persons, they being, when it so vests, husband and wife. In this description of tenancy by entirety, we have excluded the idea that the tenancy must be created by gift or purchase. Though not ordinarily acquired by descent, this is so only because husband and wife rarely succeed to property as heirs of the same person. But, on so acquiring it, they are tenants by entireties. Gillan's Ex'rs v. Dixon, 65 Pa. 395. It is not essential that they should be married when the gift or grant is made, if, thereafter, when it vests they are husband and wife. Hence, if a devise be made to a man and woman, and before the death of the testator they marry, or if a feoffment be made to them while they are single, of which livery is made after marriage; or if they recover on a voucher to warranty annexed to an estate of which they were joint tenants, in all these cases they take by...