Clark v. Cox
| Decision Date | 12 June 1920 |
| Parties | CLARK, Sheriff, et al. v. COX et al. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Calhoun County; C. L. Wilson, Judge.
Suit for injunction by Annie Cox, widow, and Eva Cox and others minors, by Annie Cox, their next friend, against C. D. Clark as Sheriff of Calhoun County, and the Flynn-Harris-Bullard Company. From an order in favor of complainants, defendants appeal. Order affirmed.
Syllabus by the Court
The Constitution does not expressly require contiguity of lands for the exemptions of a homestead, and as the meaning of the word 'homestead' is not defined in the organic provision on the subject, the question whether actual contiguity is required must be determined in each case on its peculiar facts.
A liberal interpretation should be given to the homestead provisions for the benefit of the family, but the beneficent provisions of the Constitution should not be used as a means to defraud.
Where a homestead has been acquired, it can be waived only by abandonment or by alienation in the manner provided by law.
Where land owned by the head of a family residing in this state constitutes the homestead, and is so occupied and used, the conveyance in fee of a strip 100 feet wide for the use of a public railroad right of way through the land does not destroy the homestead character of the land on both sides of the conveyed strip, where the land on both sides of the strip continued to be actually and exclusively used as parts of the home place for homestead purposes and for the support of the family.
COUNSEL John H. Carter, of Marianna, for appellants.
R. H Buford and Paul Carter, both of Marianna, for appellees.
This appeal is from an order enjoining the forced sale of land claimed as a homestead.
The bill of complaint alleges that the complainant J. M. Cox 'is the owner and in possession of certain lands, to wit, southeast quarter of northwest quarter, the northeast quarter of southwest quarter, and the south half of northeast quarter of section 4, in township 2 north, range 9 west, and occupying the same as his homestead, and using the said land to produce a livelihood for himself and family; that complainant is the head of a family residing upon said land in said state and county, and that his said family, besides himself, consists of his wife, Annie Cox, and three minor children, all of whom are dependent upon this complainant and the products of this land for a livelihood and there is now standing and growing and being a part of said realty certain crops of corn, potatoes, rice, cane, and other food and food stuffs; that, notwithstanding the fact that the above-described land is the homestead of this complainant and comprises only 160 acres which is exempt, under the Constitution and the laws of the state of Florida, to this complainant from forced sale,' the defendants have levied an execution thereon and have advertised the same for sale. An injunction was prayed. An order was made restraining the sale of the lands until further order of the court.
By answer the defendant execution creditor avers that the complainant's 'holdings consist of two separate and noncontiguous parcels, to wit, a small parcel situated to the north and east of the Marianna & Blountstown Railroad, upon which complainant's dwelling house, barns, etc., are located, and another parcel of about 76 1/2 acres, more or less, situated to the south and west of said Marianna & Blountstown Railroad, which is inclosed under separate fence, and is not contiguous to the dwelling house tract, and has no house or building upon it; that between said two tracts, and separating them as aforesaid Rufus Pennington and C. R. Evans, copartners under the firm name and style of Pennington & Evans, own in fee simple and without condition, reservation, or restriction whatsoever, a tract containing about 6 acres, more or less, described as follows: A strip 100 feet in width through the S.E. 1/4 of N.W. 1/4 and S.W. 1/4 of N.E. 1/4, section 4, township 2 north, range 9 west, 50 feet of said strip being on each side of the center of the tract of the Marianna & Blountstown Railroad, and said strip is permanently occupied and used by said Pennington & Evans and their successors.' Defendant 'denies that the said J. M. Cox was at the filing of the bill of complaint entitled to have the sale enjoined of that portion of the S.E. 1/4 of N.W. 1/4, and S.W. 1/4 of N.E. 1/4, and N.E. 1/4 of S.W. 1/4, 76 1/2 acres, more or less, section 4, township 2 north, range 9 west, which lies south and west of said tract or strip.'
It appears that J. M. Cox, owner of the land, lived thereon with his family, and used it as his homestead. Cox and his wife conveyed to 'Rufus Pennington and C. R. Evans, copartners under the firm name and style of Pennington & Evans,' 'a strip 100 feet in width through the southeast quarter of northwest quarter and southwest quarter of northeast quarter, section 4, township 2 north, range 9 west, 50 feet of said strip being on each side of the center of the track of the Marianna & Blountstown Railroad Company as now located and operated.'
'To have and to hold the above-described lands and premises, together with all and singular the tenements, hereditaments, and appurtenances thereto belonging, or in any wise appertaining, unto the said party * * * of the second part, * * * heirs and assigns, in fee simple forever.'
It also appears that the railroad track and a country highway were in use on the 100-foot strip across the land when the conveyance of the strip was made, and that the owner and his family used the land on both sides of the 100-foot strip for homestead purposes both before and after the conveyance of the 100-foot strip, that Pennington & Evans constructed and owned the railroad whose track was on the 100-foot strip, and that Cox and family lived on the east side of the strip and had a right to pass over the 100-foot strip in going to and from the portion of their land to the west of the strip. Does the conveyance of the 100-foot strip deprive the homesteader and his widow and heirs of homestead rights in the portion of the land on the opposite side of the 100-foot strip from the dwelling house? Assuming that contiguity in land is essential for homestead purposes, does the conveyance of the 100-foot strip by the owners for the purpose stated so destroy the contiguity of the land as to deprive the portion not containing the dwelling of its homestead character?
The Constitution provides that--
'A homestead to the extent of one hundred and sixty acres of land, * * * owned by the head of a family residing in this state, * * * and the improvements on the real estate, shall be exempt from forced sale,' etc. Section 1, art. 10.
In Brandies v. Perry, 39 Fla. 172, 22 So. 268, 63 Am. St. Rep. 164, it was held that--
'The head of a family residing in this state is not entitled to claim as a part of his homestead, a detached tract of land separated from the homestead by other parcels of land...
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