Bowers v. Mozingo

• Decision Date: 09 June 1981
• Docket Number: No. 80-1185,80-1185
• Citation: 399 So.2d 492
• Parties: Marion W. BOWERS, Appellant, v. Ruth Knust MOZINGO, Appellee.
• Court: Florida District Court of Appeals

Page 492

399 So.2d 492

Marion W. BOWERS, Appellant, v. Ruth Knust MOZINGO, Appellee.

No. 80-1185.

District Court of Appeal of Florida, Third District.

June 9, 1981.

Herman T. Isis, Coral Gables, for appellant.

Robert E. Rutledge, Jr., South Miami, for appellee.

Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.

BARKDULL, Judge.

The appellant seeks review of a final judgment in a declaratory judgment action, wherein the trial judge held that the defendant's (appellee herein) recorded judgment lien was imposed upon the interest of the appellant in certain real property and that, upon sale, the property would pass subject to the lien.

On appeal, it is the contention of the appellant that the trial court erred because the facts of the case clearly show he had a sufficient possessory interest in the subject property to entitle him to protection of the homestead exemption provisions of Article X, Section 1, Constitution of the State of Florida (1885) ¹ prior to the appellee obtaining her judgment lien. On the other hand, the appellee relies on Article X, Section 7, Constitution of the State of Florida (1885) ², pertaining to homestead for purposes of ad valorem taxation, and contends that the appellant did not file for homestead exemption for taxation until 1965, subsequent to the recordation of the judgment lien and, therefore, her judgment lien is paramount. Secondly, she contends that two people cannot claim the same homestead. We cannot agree with either position for the following reasons.

This case is governed by Article X, Section 1, Constitution of the State of Florida (1885), which exempts a homestead from forced sale and provides that no judgment or execution shall be a lien thereon. Clearly, this is a different thing than homestead exemption, as defined for tax purposes. Doing v. Riley, 176 F.2d 449 (5th Cir. 1949). Therefore, the appellee's reliance on Article X, Section 7, Constitution of the State of Florida (1885) is misplaced.

The facts ³ show that the appellant's father and mother owned the property in question and qualified for homestead under Article X, Section 1, Constitution of the State of Florida (1885). The appellant was running a store in Georgia in 1963. Illness overcame the father and a portion of the appellant's family moved in to take care of his parents. At this time, there can be no question that the appellant could not claim homestead as it was vested in his father as head of the household. Upon the death of the father, his homestead inured to the benefit of his wife and children, preventing the property being sold for his debts. Title then vested in the mother. Upon the death of the father, his right to homestead exemption, for tax purposes, ceased and did not pass by descent to the mother. Bendl v. Bendl, 246 So.2d 574 (Fla.3d DCA 1971); Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223 (1932). The property did not become homestead property while titled in the mother, because she failed to meet one of the tests for claiming homestead under Article X, Section 1, Constitution of the State of Florida (1885), to wit: family headship. In re Estate of Wilder, 240 So.2d 514 (Fla. 1st DCA 1970). In March 1963, after he sold his business, the appellant joined his family in Florida and resided with his mother. The property was then (on May 12, 1964) transferred by the mother to herself and the son, setting up a tenancy in common with right of survivorship. Prior to this last transfer, the appellee obtained her judgment and recorded her judgment lien on September 18, 1963.

These facts clearly show that the appellant did not have ownership in the property prior to recordation of the judgment lien, which is necessary to acquisition of the homestead right. Hinson v. Booth, 39 Fla. 333, 22 So. 687 (1897). Thus, the appellant could not legally have a right of homestead based on a mere possessory interest and his argument must fail. The judgment lien could not attach to the property in question until it was owned by the appellant. First National Bank v. Peel, 107 Fla. 413, 145 So. 177 (1933); Cheves v. First National Bank, 79 Fla. 34, 83 So. 870 (1919). We thus find both the claimed homestead right (if proven) and the judgment lien would attach to the property simultaneously upon the appellant's acquiring ownership thereof. This being the case, the rule accords priority to the homestead right, where the homestead right and the lien attach simultaneously, as in the case of purchase or inheritance of land by a judgment debtor. Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912); Pasco v. Harley, 73 Fla. 819, 75 So. 30 (1917); Quigley v. Kennedy & Ely Ins., Inc., 207 So.2d 431 (...