English v. English

• Decision Date: 02 December 1913
• Citation: 66 Fla. 427,63 So. 822
• Parties: ENGLISH et al. v. ENGLISH et al.
• Court: Florida Supreme Court

63 So. 822

66 Fla. 427

ENGLISH et al. v. ENGLISH et al.

Florida Supreme Court

December 2, 1913

Appeal from Circuit Court, Duval County; Geo. Couper Gibbs, Judge.

Bill by Nancy English and others against Julius English and others. Decree for defendants, and complainants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

Where land was conveyed to both husband and wife, an estate by entirety was created at common law, and upon the death of one spouse the entire estate went to the other. The common law has been expressly declared by statute to be of force in this state, except where it has been modified by competent governmental authority, and, as there has been no such modification of this principle, an estate by entirety must be held to still exist.

COUNSEL I. L. Purcell, of Jacksonville, for appellants.

Chas S. Adams, of Jacksonville, for appellees.

OPINION

SHACKLEFORD C.J.

The bill of complaint originally filed by the appellants was nominally a bill for the partition of certain described land. The final decree rendered in the cause fully and clearly sets out the subsequent proceedings, and reads as follows:

'This cause coming on to be heard upon motion of complainant dated December 27, 1912, and filed February 10, 1913, asking leave to file an amendment to the bill of complaint, and said motion for amendment having been set down for hearing and argued by counsel representing the parties hereto by consent, upon the said 10th of February, A. D. 1913, and it appearing to this court by an examination of the papers on file herein that the original bill was filed January 24, 1912, and was amended by leave of court after answer by defendants and replication filed, by amended and supplemental bill of complaint filed October 24, 1912, and that defendants fully answered the supplemental and amended bill before the cause was set down for hearing, and before amendment was sought as heretofore recited, and that said proposed amendment seeks to change the parties and entire theory of the bill as heretofore amended, and it further appearing that counsel for complainants now has withdrawn his application for leave to amend, and moves to dismiss the cause without prejudice, and it further appearing that counsel for defendant Eartha M. M. White objects to the granting of such motion to dismiss, on the ground that the subject-matter of this bill has been involved by bill filed several years ago by other counsel, and dismissed by this court, and also by one other suit brought by counsel representing complainants herein, which has been also dismissed by this court, and because the action now sought is detrimental to the interest of the defendants, there being no dispute as to facts, and the complainants having now failed to make a case by his pleadings in this cause seeking to attack the title of the defendant Eartha M. M. White, under deed from and will of Sam English, deceased:

'It is therefore ordered, adjudged, and decreed that the motion of the complainant to dismiss this cause without prejudice be denied.

'It is further ordered, adjudged, and decreed that the equities of this cause are with Eartha M. M. White, one of the defendants, and that the bill as heretofore amended be and it is hereby dismissed, at the cost of the complainants.

'Done at Chambers, Jacksonville, Florida, this 11th day of February, A. D. 1913.'

From this decree the complainants have entered their appeal, and have assigned five errors; but only one point is presented to us for determination, that is whether or not an estate by entirety exists in this state. It is not contended before us that the court erred in refusing the motion of the complainants to dismiss the cause without prejudice, so there is no occasion for us to discuss that phase of the decree. The point urged is that the court erred in finding the equities with Eartha M. M. White, one of the defendants, and for that reason ordering the bill dismissed. There was 'no dispute as to facts,' as is recited in the final decree; the cause having been set down for a hearing by the complainants 'upon the amended and supplemental bill and the answer filed by the defendants, Eartha M. M. White and Clara White.' As is stated very concisely and correctly by the appellees in their brief:

'The undisputed facts in the case are that Adam English, an aged colored man, was seised and possessed of the land involved in this suit on June 8, 1906, and deeded on that date the same to his granddaughter Eartha M. M. White, one of the appellees, and that on May 9, 1907, Eartha M. M. White reconveyed the land back to Adam English and his wife, Nancy English; that in August, 1908, Adam English died, and his wife claimed title to and conveyed all of the said land to her son Sam English in October of the same year, and Sam the next day conveyed a one-half interest to his niece, the said Eartha M. M. White. Sam English, on ...