Church v. Lee

Decision Date15 July 1931
Citation102 Fla. 478,136 So. 242
CourtFlorida Supreme Court
PartiesCHURCH v. LEE et al.

Commissioners' Decision.

Suit by Dorothy Louise Sewell Lee, joined by her husband Quinney L Lee, against Kathryn E. Holmes and others. From an interlocutory order overruling a demurrer of defendant J. W Church, he appeals.

Order reversed in accordance with opinion.

BROWN J., dissenting.

Syllabus by the Court.

SYLLABUS

A legally adopted child becomes an heir at law to the homestead of the adopting parent, and that status does not cease or become affected by the child's subsequent marriage or by reaching his majority.

Where the head of a family owning a homestead dies leaving a child or children surviving him, and his widow does not within one year from probating the will elect to take a 'child's part' therein, she will be confined to her one-third dower interest for life.

The 'homestead real estate' not being the subject of a will by the owner to the wife where there are children surviving, it follows by necessary implication that the homestead could not be 'alienated' to the wife even by joint deed, if the real effect would indirectly nullify the constitutional inhibition.

The Constitution does not permit a 'voluntary' conveyance of the homestead to the wife by means of a deed, though duly executed by the owner and wife to a third party who at once and as a part of the same transaction conveys it to the wife.

While the Constitution and statutes of this state do not in terms prohibit or declare invalid a 'voluntary' conveyance by the owner and wife to third persons who immediately reconvey to the wife, nor conveyances made directly to the wife, yet the implied limitations of the Constitution being as much a part of the organic law as are those which are specifically expressed, a conveyance not permitted to be made in one way cannot be valid when made in another, if the results are the same.

Section 5670, Compiled General Laws of Florida 1927, authorizing a husband to deed real estate directly to his wife, as though they were not married, does not apply to 'homestead real estate' referred to in article 10 of the Florida Constitution, and statutes providing for its enforcement.

Homestead rights inure to the widow and heirs of the owner of the homestead who must be the head of a family residing in this state. It is for this reason that when there are children or a child of the husband a conveyance of homestead real estate to the wife by the husband alone is void under the Constitution prescribing the method by which homestead real estate may be alienated.

The organic provisions contemplate that neither the widow nor the heirs shall be deprived of their prospective rights in the homestead, and requiring the joinder of husband and wife in such deed does not contemplate either a direct or indirect voluntary conveyance of the homestead to the wife.

A deed to a homestead executed jointly by the owner and wife directly to the wife, where there is a child or children surviving, whether minors or adults or whether residing with the family, is prima facie ineffective, as against the interests of such heirs, to convey legal title.

If the payment of a valuable consideration for the conveyance of a homestead to the wife becomes a material question, it must be affirmatively proven by the party relying upon its validity.

An attempted 'alienation' of the homestead by the owner and wife directly to the wife merely leaves the title substantially as it was before, without divesting it of its character as a homestead.

To require a wife to unite in a conveyance 'alienating' the homestead to herself would be to require the performance of an idle act, as she cannot 'alienate' her interest in the homestead by joining in a conveyance of the homestead to herself.

Though a deed made by a homestead owner and his wife to the wife be invalid, a mortgage covering the homestead executed by the wife, after the death of the owner, may be an enforceable lien to the extent of her unassigned one-third dower rights or interest in the homestead. Appeal from Circuit Court, Duval County; DeWitt T. Gray, judge.

COUNSEL

Paul C. Marion, of Jacksonville, for appellant.

James H. Bunch, of Jacksonville, for appellees.

OPINION

ANDREWS C.

This case is here upon appeal from an interlocutory order of the circuit court of Duval county overruling a demurrer of one of the defendants, J. W. Church, only appellant here, to an amended bill of complaint as amended, filed by Dorothy Louise Sewell Lee, joined by her husband Quinney L. Lee, as complainants, and against Kathryn E. Holmes, F. N. Holmes. Thomas D. Sewell, and J. W. Church, as defendants.

The bill appears to have for its purposes: (1) The cancellation of a deed executed by V. D. Sewell, joined by his wife, Kathryn E. Sewell, father and mother of complainant, which purports to convey the homestead of the former direct to the latter; (2) the cancellation of a mortgage on the said homestead executed by Kathryn E. Sewell to J. W. Church subsequent to the death of V. D. Sewell; (3) the cancellation of a deed made by Kathryn E. Sewell Holmes and her husband F. N. Holmes to the latter to one-half interest in said property; and (4) the partition of the property if practicable among the heirs, and, if not, it be sold for cash and the money derived therefrom be paid into court to be divided among the heirs of V. D. Sewell, as the court may decree. The defendant J. W. Church filed a separate demurrer to the bill which was overruled, and, from this order alone, appeal to this court was taken by J. W. Church.

It is contended by appellee that the validity of the said mortgage, executed by the widow Kathryn E. Sewell to J. W. Church, as an enforceable lien, depends upon the validity of the said deed executed by V. D. Sewell and wife to the latter, and that if the said deed is void the mortgage is likewise invalid, also the deed from Kathryn E. Holmes and husband to the latter, and are all cancelable of record.

The bill of complaint in substance alleges that complainant Dorothy Louise Sewell Lee is the daughter by adoption of V. D. Sewell and Kathryn E. Sewell, the decree of adoption being entered October 27, 1917; that she was married to Quinney L. Lee December 26, 1927; that her father V. D. Sewell owned and lived upon certain described property in Jacksonville, Fla., as a homestead and head of the family at the time of his death and many years prior thereto; that at the time of his death on October 1, 1921, he left surviving him the said Kathryn E. Sewell, his wife, Thomas D. Sewell, a son, and complainant Dorothy Louise Sewell, a minor, as the only heirs to said homestead; that the said V. D. Sewell and his wife, Kathryn E. Sewell, on May 20, 1920, executed a purported deed to said homestead undertaking to convey same to the wife Kathryn E. Sewell, which deed (it is claimed) was recorded November 5, 1921, after the death of said V. D. Sewell on October 1, 1921; that thereafter, to wit, on October 25, 1921, said Kathryn E. Sewell, widow, executed and delivered to J. W. Church, appellant here, a mortgage on said homestead to secure the sum of $10,000; that at the time, and ever since the death of V. D. Sewell, Kathryn E. Sewell only owned a one-third dower interest in said homestead; that subsequent to making said mortgage said widow married F. N. Holmes, who soon thereafter joined with her in undertaking to convey to himself a one-half undivided interest in said property. All of said instruments were recorded.

The bill further alleges. in substance, that V. D. Sewell left a last will and testament which was duly probated by the county judge of Duval county on October 19, 1921, and that said Kathryn E. Sewell, widow of V. D. Sewell, did not elect to take a child's part in said homestead of V. D. Sewell within one year after the probate of said will, and that, no dower in said estate ever having been set apart to the said widow, she was seized and possessed of only an 'undivided one-third dower interest' in the said homestead for the term of her natural life; that complainant Dorothy Louise Sewell Lee and the said Thomas D. Sewell are each seized of an undivided one-half interest in said homestead, as children of the deceased, which is subject only to the one-third dower life interest of the said wife; that the said wife has, since the death of the said V. D. Sewell, been living upon and using the said homestead as her residence, and receiving rents from portions thereof not personally used by her.

The four main grounds of the said demurrer of J. W. Church set up that the bill as amended fails to show:

(1) That the deed from V. D. Sewell and his wife Kathryn E. Sewell, to Kathryn E. Sewell, is void;

(2) That the mortgage from the widow Kathryn E. Sewell to defendant J. W. Church is void;

(3) That the property described was the homestead of V. D. Sewell at the time of his death, and

(4) That complainant Dorothy Louise Sewell Lee is a lawful heir of V. D. Sewell.

Disposing of the last point raised first, it is observed that the bill alleges that complainant, a minor, was duly adopted by V. D Sewell and wife, the decree being entered on October 27, 1927. Under section 5081(3273), Compiled General Laws of Florida 1927, any child duly adopted by any person under the laws of this state is declared to be the child and heir at law of the person applying for adoption. Dorothy Louise Sewell therefore became the child and heir of V. D. Sewell and Kathryn E. Sewell from and after October 27, 1917, and this status continued after her subsequent marriage to Quinney L. Lee, on December 26, 1927, as the Constitution and statutes do not confine the inheritable rights of a 'child or children' in the...

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21 cases
  • Reed v. Fain, 31122
    • United States
    • Florida Supreme Court
    • November 1, 1961
    ...facie ineffective to convey legal title to such homestead, insofar as the vested interest of the children are concerned.' Church v. Lee, 102 Fla. 478, 136 So. 242, 247. This Court had earlier committed itself to the In view of the decisions of this Court which have consistently been extende......
  • Public Health Trust of Dade County v. Lopez
    • United States
    • Florida Supreme Court
    • June 9, 1988
    ...family was survived by two adult sons, Court found exemption of father inured to adult heirs who were not dependents); Church v. Lee, 102 Fla. 478, 136 So. 242 (Fla.1931) (homestead cannot lawfully be alienated by husband to wife, as it would still be the homestead and subject to inheritanc......
  • Hay v. Wanner, 14134.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 15, 1953
    ...or not there was a consideration for the conveyance, but the implications are that there was not. See also a later case, Church v. Lee, 102 Fla. 478, 136 So. 242, in which husband and wife joined in a conveyance directly to the wife, and it was held that the complaint, brought to set it asi......
  • Daniels v. Katz
    • United States
    • Florida District Court of Appeals
    • June 16, 1970
    ...may not be alienated contrary to the interests of those to be protected by the homestead character of the property involved (Church v. Lee, 102 Fla. 478, 136 So. 242; Reed v. Fain, Fla.1961, 145 So.2d 858; Gotshall v. Taylor, Fla.App.1967, 196 So.2d 479); they are not subject to execution o......
  • Request a trial to view additional results

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