Dodson v. National Title Ins. Co.

• Decision Date: 25 July 1947
• Citation: 31 So.2d 402,159 Fla. 371
• Parties: DODSON et al. v. NATIONAL TITLE INS. CO. et al.
• Court: Florida Supreme Court

31 So.2d 402

159 Fla. 371

DODSON et al. v. NATIONAL TITLE INS. CO. et al.

Florida Supreme Court

July 25, 1947

Appeal from Circuit Court, Dade County; George E. Holt judge.

T. H. Teasley and Hyzer & Padgett, all of Miami, for appellants.

Amos Benjamin, of Miami, and J. Lewis Hall, of Tallahassee, for appellee.

TAYLOR, Associate Justice.

Martha E. Dodson and Phyllis O. Dodson filed a bill for declaratory decree against the National Title Insurance Company, a corporation and Sadie J. Dodson, for the purpose of securing a judicial determination of the respective rights of the three Dodson ladies in certain funds in the hands of the National Title Insurance Company. Sadie J. Dodson is the widow and Martha E Dodson and Phyllis O. Dodson are daughters by a prior marriage of the late Boyd H. Dodson, deceased.

The funds is question arose from the sale by Boyd H. Dodson and Phyllis O Dodson of certain real estate in Dade County pursuant to an escrow agreement in which National Title Insurance Company was escrow holder. All the conditions of the escrow agreement, except the actual disbursement of the funds, were performed before the death of Boyd H. Dodson.

There is little controversy as to the material facts. The deed was placed in escrow by Mr. and Mrs. Dodson early in 1946. The escrow holder was to hold the deed, receive the purchase money and hold both until possession of the property was delivered to the purchasers on May 1, 1946, and then deliver the deed and disburse the funds. The notice of transfer of possession was not received until May 2d and the deed filed for record on that date. Mr. Dodson died May 3d, before the funds had been disbursed.

At the time of the delivery of the deed to the escrow holder Mr. and Mrs. Dodson executed a 'closing statement' dated March 25, 1946 directing that the net proceeds of the sale be paid, one half to Mr. Dodson and one half to Mrs. Dodson.

On April 12th, Mr. Dodson wrote the escrow holder as follows: 'In connection with the sale of Lot 34 and Isle 34, Bella Vista Subdivision, Sunny Isles, to David Kovnat, Benjamin Kovnat and Maurice Kovnat, I wish to instruct you to issue your check in the amount of $12,163.20, which represents the amount due me in this transaction, to Martha E. Dodson and Phyllis O. Dodson, whose address is Berwick, R. D. No. 1, Pennsylvania.'

Testimony of the officer of the National Title Insurance Company handling the escrow shows that the letter above quoted was delivered to him personally. His testimony also indicates that he and his company were perfectly willing to disburse the funds any way Mr. Dodson desired but that they did not regard the instructions contained in the letter as irrevocable or as relieving them of the duty which they owed Mr. Dodson to remain subject to his orders with respect to these funds.

The moneys were never disbursed although check were drawn by National Title Insurance Company on May 7th for the payment of one half the money to Mrs. Dodson and one half to appellants. These checks were never delivered.

The chancellor held that Mrs. Dodson was entitled to one half of the funds in question and that the other half should be paid to the personal representative of the estate of Boyd H. Dodson, deceased.

In the foregoing statement of the case we have not mentioned various allegations, proof, and arguments with respect to the title of Mr. and Mrs. Dodson to the land conveyed, as to whether it was held as tenants by the entireties, was homestead, or was owned by Mr. Dodson but not as his homestead. We do not consider a determination of this involved question necessary or material. Our conclusion as to the title to the funds in question would be the same no matter how the title to the land had been held.

If the land was owned by the entirety, that estate was terminated before the husband's death as to the funds arising from the sale by the express agreement of both parties in the closing statement.

The income from, or the proceeds of, the sale of real estate held by the entirety is equally the property of the husband and the wife. It is held by the unity. Either one taking possession holds for the benefit of both. That is the rationale of our prior decisions.

The holding in Merrill v. Adkins, 131 Fla. 478, 180 So. 41, to the effect that a husband could discharge a promissory note payable to both by accepting payment in nowise changed our holding as to the nature of the estate as announced in English v. English, 66 Fla. 427, 63 So. 822, and in Ohio Butterine Company v. Hargrave, 79 Fla. 458, 84 So. 376, which latter cases have never been departed from and stand re-affirmed.

But such funds are the proper subject of contract between husband and wife section 708.09, F.S.A., and they may provide by contract for termination of the estate by the entirety resulting in equal division of the personal property. That is the effect of the settlement agreement....