Croker v. Croker

• Decision Date: 30 June 1931
• Docket Number: No. 5942.,5942.
• Citation: 51 F.2d 11
• Parties: CROKER et al. v. CROKER et al.
• Court: U.S. Court of Appeals — Fifth Circuit

51 F.2d 11 (1931)

CROKER et al. v. CROKER et al.

No. 5942.

Circuit Court of Appeals, Fifth Circuit.

June 30, 1931.

J. T. G. Crawford and George C. Bedell, both of Jacksonville, Fla., and Frederick R. Ryan, of New York City, for appellants.

George M. Powell, of Jacksonville, Fla., F. T. Fancher, B. F. Paty, C. H. Warwick, Jr., and R. E. Robinson, all of West Palm Beach, Fla., F. P. Fleming and C. H. Lichliter, both of Jacksonville, Fla., and C. D. Blackwell, of West Palm Beach, Fla., for appellees.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellants, children of Richard Croker, deceased, by this appeal bring into question the correctness of a decree of the court below denying their claim as heirs under the homestead sections of the Florida Constitution, to property described by them in their brief, as about "one mile of valuable ocean front now in the town of Palm Beach, Florida, owned by the late Richard Croker at the time of his death."

There are three appellees: (1) Bula Croker, widow of Richard Croker, Sr., who claims all of the property, claiming to have acquired it in one of three ways, by deed in Croker's lifetime, by prescription under the deed, or by his will; and (2) J. B. McDonald and Palm Beach Estates, together claiming part of the property by purchase from Bula and Richard Croker in his lifetime.

The District Judge found generally against the appellants on the issue of homestead and dismissed their bill. He did not find it necessary, nor do we, since we agree with his conclusion on the homestead issue, to determine whether Bula Croker acquired her title by deed, by prescription, or by will; or the correctness of the claim made by McDonald and the Palm Beach Estates that they acquired title to part of the property by deeds from Croker and wife. See Croker v. Croker (D. C.) 7 F.(2d) 218, 219; Bula Croker v. Palm Beach Estates, 94 Fla. 171, 114 So. 225.

We have been greatly aided by the excellent briefs which have exhaustively collected and collated the significant features of the evidence and the applicable authorities. While these briefs have made it clear that the matter must be disposed of ultimately as a question of fact, they have also made it plain that there are certain legal principles which must be kept in mind in apprehending, relating, construing, and giving significance to the primary facts which the voluminous record discloses. A brief statement of these principles will serve, we think, to explain and support the conclusion that the land in question was not "a homestead * * * owned by the head of a family residing in this State," and that therefore there was no homestead exemption inuring to the appellants as heirs of Richard Croker.

Primarily it must be borne in mind that while the courts of Florida have construed most liberally the inurement provision of article 10, § 2, of the Florida Constitution in favor of the heirs of a homestead owner, resident in the state, whether these heirs are themselves adult or infant, resident or non-residents on the homestead or in the state (Norton v. Baya, 88 Fla. 1, 102 So. 361), the Florida courts, in line with the uniform current of American authorities upon homestead exemptions, are very firm in maintaining, "The Constitution does not contemplate that the exemptions allowed shall extend to any title, right, or interest in property that is not owned by the head of a family residing in this state." Pasco v. Harley, 73 Fla. 819, 75 So. 30, 33; Lanier v. Lanier, 95 Fla. 522, 116 So. 867.

It is also clearly settled by the Florida decisions that while "the provisions of the homestead laws should be carried out in the liberal and beneficient spirit in which they were enacted, but at the same time great care should be taken to prevent them from becoming the instruments of fraud," Jetton Lbr. Co. v. Hall, 67 Fla. 61, 64 So. 440, 51 L. R. A. (N. S.) 1121, those decisions strictly declare that, "The `exemptions' allowed do not attach to real estate that is not occupied as the home of the family." The place must be not a theoretical, but a real place of residence. Solary v. Hewlett, 18 Fla. 756; Matthews v. Jeacle, 61 Fla. 686, 55 So. 865; Pasco v. Harley, 73 Fla. 819, 75 So. 30, 32.

Under the Florida decisions, actual occupancy of a home with intention to remain there and make it the home of the family, the place of their actual use and occupancy, is essential to the homestead right. Loring v. Wittich, 16 Fla. 498; Oliver v. Snowden, 18 Fla. 823, 43 Am. Rep. 338; Drucker v. Rosenstein, 19 Fla. 191. Further, the right to the exemption may be lost after it accrues by the owner ceasing to be the "head of a family residing in this state," Matthews v. Jeacle, 61 Fla. 686, 55 So. 865, 867; Herrin v. Brown, 44 Fla. 782, 33 So. 522, 103 Am. St. Rep. 182; or by the abandonment of the property as the home of the family, Murphy v. Farquhar, 39 Fla. 350, 22 So. 681; Pasco v. Harley, 73 Fla. 819, 75 So. 30, 33.

In these respects the decisions of Florida but emphasize and confirm that public policy which underlies this institution of purely American origin, that it is designed to secure and does secure to residents of the state the secure protection of a family home; or as stated in Stanton v. Hitchcock, 64 Mich. 316, 31 N. W. 395, 8 Am. St. Rep. 821, quoted with approval in Tromsdahl v. Nass, 27 N. D. 441, 146 N. W. 719, 721, 52 L. R. A. (N. S.) 746: "The state's guaranty of the right of homestead was designed to protect those who had subjected themselves to its laws, and acted in reliance on them, but not to treat as homes what are not homes, or give powers to non-residents which could not, under any circumstances, be of use to them personally."

It is also true that in Florida, as elsewhere, one may be the head of a family residing in the state without being a citizen thereof, and one may be a citizen of a state without being the head of a family residing there. State v. Adams, 45 Iowa, 99, 24 Am. Rep. 760; Hauenstein v. Lynham, 100 U. S. 483, 25 L. Ed. 628; Minor Conflicts of Law, § 21, p. 60; State v. Jackson, 79 Vt. 504, 65 A. 657, 8 L. R. A. (N. S.) 1245, citizenship not being an essential to but one of the factors in determining the question of permanent residence vel non within the state. If permanent residence in the state is coupled with the ownership of property which is adapted to be and is used as a family home, the exemption secured by the Constitution exists in favor of the home owner, whether under nice distinctions "the place where he lives be called his domiciliary residence or merely his residence."

For it is not the nice distinctions inherent in legal words, but the fact of actual use and occupancy of the home with the intention of permanency, which gives the exemption. Chitty v. Chitty, 118 N. C. 647, 24 S. E. 517, 32 L. R. A. 394; Smith v. Croom, 7 Fla. 81.

In this view while we do attach great evidentiary significance to the facts regarding Glencairn, the Irish estate of Croker, we think these facts should be considered as part of the full stream and not as having the great particular legal significance that appellees would, on the theory of the law of domicile of origin, attach to them. We do think, however, that taken as a part of the deepening stream of his life they show and form the current of it, and irresistibly carry the mind to the conclusion that if Glencairn in Ireland was not his home, he had no home.

The briefs of the parties cite many authorities. Both rely upon Jacobs on Domicile, while for the appellees emphasis is placed upon Marks v. Marks (C. C.) 75 F. 321; Munro v. Munro, 7 C. & F. 891; Udny v. Udny, 1 H. L. 441; 9 Eng. Ruling Cases, 782; Moorehouse v. Moorehouse, 10 H. L. Cases (Eng.) 272; Somerville v. Somerville, 5 Ves. 750, also reported in First Am. Ruling Cases 284 to 302. Other American cases relied on by appellees are McKowen v. McGuire, 15 La. Ann. 637; Smith v. Croom, 7 Fla. 81; Pickering v. Winch, 48 Or. 500, 87 P. 763, 9 L. R. A. (N. S.) 1159; Mitchell v. U. S., 21 Wall. 350, 22 L. Ed. 584.

Appellants on their part cite Ennis v. Smith, 14 How. 400, 14 L. Ed. 472; Desmare v. U. S., 93 U. S. 605, 23 L. Ed. 959; Mitchell v. U. S., 21 Wall. 350, 22 L. Ed. 584; Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502; Duke v. Duke, 70 N. J. Eq. 135, 62 A. 466; Maxwell v. McClure, 22 H. L. 7; Chitty v. Chitty, 118 N. C. 647, 24 S. E. 517, 32 L. R. A. 394; Smith v. Croom, 7 Fla. 81.

It will not serve any purpose to discuss or analyze these cases. All of them are...