Andrews v. Andrews
| Citation | 21 So.2d 205,155 Fla. 654 |
| Parties | ANDREWS v. ANDREWS. |
| Decision Date | 06 March 1945 |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Palm Beach County; Jos. S White, judge.
Jordan Johnson, of West Palm Beach, for appellant.
C. Y Byrd, of Delray Beach, for appellee.
Appellant and appellee were divorced, and neither challenges that part of the decree severing the marriage tie, there being presented now only the matter of the correctness of the chancellor's determination of the rights of the parties to a certain piece of property purchased jointly and deeded to them as husband and wife, thereby creating an estate by the entirety. Both parties eventually defaulted in the payment of taxes, and the title became vested in the State of Florida under the Murphy Act. Section 9, Chapter 18296, Laws of Florida, Acts of 1937, Section 192.38, Florida Statutes 1941, and F.S.A. The property was subsequently sold at auction, and the appellant was the successful bidder whereupon the property was conveyed to her individually by the trustees of the internal improvement fund. This all occurred while the marriage relation existed.
So, to summarize, one holder of an unseverable interest, Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727, 728, whose duty to pay the tax was the same as her co-holder, obtained a deed conveying the whole title, hence took advantage of her own failure as well as that of her co-owner. The question arises whether a husband or a wife could eliminate the interest of the other spouse in such an estate via the process of recapturing the property under the provisions of the Murphy Act.
In the case of Strauss v. Strauss, supra, it was further said that upon divorce the husband and the wife who held an estate by the entirety became 'joint tenants or tenants in common.' Of course by Section 3, Chapter 20954, Laws of Florida, Acts of 1941, Section 689.15, Florida Statutes 1941, and F.S.A., it is now expressly provided that 'in cases of estates by entirety, the tenants, upon divorce, shall become tenants in common.'
From the authorities we have examined it appears that there is one distinguishing feature of an estate in common; namely, 'unity' of possession. In joint tenancy there are three additional 'unities'; that is, the interests must be the same, must have originated in the identical conveyance, and must, therefore, have commenced simultaneously. There is the added characteristic of survivorship. In tenancy by the entirety all of these 'unities' of joint tenancy are present and also that additional 'unity' of person, Bailey v. Smith et al., 89 Fla. 303, 103 So. 833, springing from the relationship of husband and wife, and, too, neither holder may alone sever the estate.
We think the effect of the action of the wife, appellant, may be tested by the elements peculiar to estates by the entirety, which, we repeat, are unity of person and the concomitant, unity of estate. As we stated at the outset, it was written in Strauss v. Strauss that the estate is not severable, and in Bailey v. Smith, supra, in reiterating this pronouncement the court clearly demonstrated the connection between the indivisibility of estate and oneness of person. It was expressed thus: A like statement of the law on the subject may be found in 26 Am.Jur., Husband and Wife, page 697; also in Thompson's Commentaries on Real Property, Vol. 4, page 333, where we learn that the singleness of person is traceable to the common law conception of man and wife as one.
If, then, in such a situation there is but one person and but one indivisible estate, which could pass from one to the other only by death and from them to a third party only by joint deed, how could either eliminate the other's interest by failing to pay a tax and then purchasing the whole title as a result of the default? If they are but one, then his default was hers as well, and her act in purchasing the property was his also.
An attempt by one spouse to take advantage of the other by the purchase of property held by the entirety cannot be sanctioned. If a tenant purchases the joint property at a tax sale, his act benefits all the...
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