Cumberland & Liberty Mills v. Keggin

• Decision Date: 07 July 1939
• Citation: 139 Fla. 133,190 So. 492
• Parties: CUMBERLAND & LIBERTY MILLS et al. v. KEGGIN.
• Court: Florida Supreme Court

190 So. 492

139 Fla. 133

CUMBERLAND & LIBERTY MILLS et al. v. KEGGIN.

Florida Supreme Court, Division B.

July 7, 1939

Suit by Thomas G. Keggin against the Cumberland & Liberty Mills and others to enjoin sale of realty under an execution. From a decree granting the injunction, defendants appeal.

Affirmed. Appeal from Circuit Court, Hillsborough County Harry N. Sandler, judge.

COUNSEL

William C. Gaither and McKay, Macfarlane, Jackson & Ramsey, all of Tampa, for appellants.

Charles F. Blake, of Tampa, for appellee.

OPINION

WHITFIELD Presiding Justice.

In February, 1937, appellee here brought suit in the Circuit Court for Hillsborough County, Florida, against the appellants, seeking to enjoin the sale of real estate as the property of James W. Keggin, deceased, under an execution issued in 1936 on a judgment obtained against James W. Keggin in 1923 when he was a widower and his only two children adult sons, were living with him, some of such property being claimed as the homestead of James W. Keggin, who died in 1935.

In the administration of the estate of James W. Keggin, no claim was presented under the judgment obtained against James W. Keggin in 1923. It is alleged that the judgment against James W Keggin was not for any indebtedness for which the exempted homestead real estate may be made liable under the constitution. The Court granted the injunction, and the defendants appealed.

The first question presented is:

'Does property alleged to be homestead constitute such a status under the Constitution of the State of Florida, where the judgment debtor was a widower at the time of the rendition of the judgment and the only persons residing with the said judgment debtor upon said property were his two sons, both of whom had reached their majority?'

The constitution of Flordia contains the following:

'A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with one thousand dollars' worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists. But no property shall be emempt from sale for taxes or assessments, or for the payment of obligations contracted for the purchase of said property, or for the erection or repair of improvements on the real estate exempted, or for house, filed or other labor performed on the same. The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner; and no judgment or decree or execution shall be a lien upon exempted property except as provided in this article.' Sec. 1, Art. X.

'The exemptions provided for in section one shall inure to the widow and heirs of the party entitled to such exemption, and shall apply to all debts, except as specified in said section.' Sec. 2 Art. X.

The property claimed as a homestead of James W. Keggin at his death consists of Lots 1, 2, 3, 4 and 5 of Block 52 of Macfarlane Park in Hillsborough county, Florida, the lots aggregating in area less than one half acre. Lot 3 was owned by James W. Keggin while his wife was living. After the death of his wife, but while his son Thomas G. Keggin and his family continued to live on the homestead with the father, James W. Keggin acquired, in 1925, Lots 1 and 2, and, in 1929, Lots 4 and 5. Thomas G. Keggin married in 1925 and brought his wife to live with him and his father on the father's homestead. The other son, B. M. Keggin, moved from the homestead at that time.

James W. Keggin owned homestead real estate on which he, with his wife and two sons, Thomas G. Keggin and B. M. Keggin, lived. After the death of the wife, the sons, being then of age, continued to live with the father on the homestead. One of the sons, Thomas G. Keggin, married and thereafter with his family lived with the father on the homestead, and said son and his family continued to live on the homestead after the father died, the other son having moved from the father's homestead when his brother married. After the death of the father the unmarried son who had moved from the homestead, conveyed the homestead to his brother, who with his family continued to live on the homestead. The two sons were the only heirs of the father.

The homestead exemption inures to the heirs where there is no widow; and the married son, one of the two heirs of the father, lived with the father on his homestead at and after the death of the mother, and until the death of the father; and continued to live on the homestead with his family after the death of the father. Under such circumstances, in the absence of a showing that the father and the married son did not regard the son and his family, while they lived on the father's homestead with him, as being of the family of the father, such continued living together of the father and his son and heir and the son's family after the death of the mother, will be regarded as constituting a continuing family relation which preserved the homestead character of the real estate, so that at the father's death such homestead inured to the two sons under the constitution, exempt from debts of the father, except those debts, if any, which are specified in the constitution as not being subject to homestead exemption.

The provision of section 2, Article X, of the constitution that the homestead exemptions 'shall inure to the widow and heirs of the party entitled to such exemption, and shall apply to all debts, except as specified in' section 1 does not limit the exemption to the 'heirs' who are minors or dependents; but such exempt property 'inures to the * * * heirs of the' father where the mother predeceased the...