Burke v. Coons, 2419

• Decision Date: 27 December 1961
• Docket Number: No. 2419,2419
• Parties: Mary Ann BURKE, Appellant, v. William E. COONS and Mary C. Coons, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 235

136 So.2d 235

Mary Ann BURKE, Appellant, v. William E. COONS and Mary C. Coons, his wife, Appellees.

No. 2419.

District Court of Appeal of Florida, Second District.

Dec. 27, 1961.

Rehearing Denied Jan. 17, 1962.

Thomas F. Tompkins, Jr., of Kelley, Tompkins & Griffin, Fort Lauderdale, for appellant.

Philip Jansen, of Jansen, Cobb & Haines, Fort Lauderdale, for appellees.

SMITH, Judge.

The appellant, Mary Ann Burke, as plaintiff, brought an action to foreclose a mortgage on real property against the defendants-appellees, William E. Coons and Mary C. Coons, his wife. The plaintiff is the stepmother of Mary C. Coons. The facts precipitating the litigation are that the plaintiff and her husband were the owners of real property. They conveyed this property to the defendants, and the defendants gave their promissory note and mortgage on the property to the plaintiff and her husband as security for the balance of the purchase price. After the death of her husband, the plaintiff instituted this action to foreclose. The defendants answered alleging that the plaintiff and her husband had, prior to his death, made a gift to the defendants of the debt evidence by the note and secured by the mortgage. After hearing, the court entered a final decree in favor of the defendants denying foreclosure.

A note and mortgage can be held by a husband and his wife as an estate by the entirety, Tingle v. Hornsby, Fla.App.1959, 111 So.2d 274. In the case of Ohio Butterine Co. v. Hargrave, 1920, 79 Fla. 458, 84 So. 376, 378, in discussing the rights and interests of the parties in an estate by the entirety, the Court said:

"As between husbnd and wife there is but one owner, and that is neither the one nor the other, but both together. The estate belongs as well to the wife as to the husband. Then how can the husband possess any interest separate from his wife, or how can he alienate or encumber the estate, when all the authorities agree that the wife can neither convey nor incumber such estate. We are of the opinion that from the peculiar nature of this estate, and from the legal relation of the parties, there must be unity of estate, unity of possession, unity of control, and unity in conveying or incumbering it; * * *. The estate is placed beyond the exclusive control of either of the parties. * * *."

and the property of such an estate is not subject to disposal by either spouse alone. Anderson v. Carter, Fla.App.1958, 100 So.2d 831.

A negotiable instrument is discharged, among other ways, by 'the intentional cancellation thereof by the holder,' or 'when the principal debtor becomes the holder of the instrument at or after maturity, in his own right.' Section 675.28, Florida Statutes, F.S.A.

A debt may be the subject of a gift of the creditor to the debtor, Roe v. Roe, 1929, 98 Fla. 840, 124 So. 734.

The two essential elements of a gift inter vivos are, the intention of the donor to relinquish dominion over the subject; and, delivery of it to the donee. Jones v. Ferguson, 1942, 150 Fla. 313, 7 So.2d 464.

The burden of proof is on one claiming to be the donee of property to establish all facts essential to the validity of the gift; and when the claim of a gift is not asserted until after the death of the alleged doner, it should be sustained by clear and satisfactory evidence of every element which is requisite to constitute a gift, Lowry v. Florida National Bank of Jacksonville, Fla.1949, 42 So.2d 368. For general statements of the principles of law involved, see 38 C.J.S. Gifts §§ 10, 15, 16, 58, 60 and 65.

With the above principles of law in mind, we now consider the evidence of this case to determine whether or not there is sufficient evidence to sustain the finding of the court that the defendants proved that a gift inter vivos had taken place from the plaintiff and her deceased husband to the defendants. The note and mortgage was kept in the safe of the plaintiff and her husband. The safe was at the place of business of the defendants. The plaintiff's husband called her and requested that she come to the place of business and open the safe, which she did, and left immediately. Nothing was removed in her presence. A few months later, the safe was delivered to the home of the plaintiff and her husband where it remained until after his death. After this, the plaintiff learned that the note and mortgage ws not in the safe. The defendant, William E. Coons, testified that he received possession of the note and mortgage...