First Nat. Bank v. Peel

• Decision Date: 15 December 1932
• Citation: 145 So. 177,107 Fla. 413
• Parties: FIRST NAT. BANK OF CHIPLEY v. PEEL et al.
• Court: Florida Supreme Court

145 So. 177

107 Fla. 413

FIRST NAT. BANK OF CHIPLEY v. PEEL et al.

Florida Supreme Court

December 15, 1932

Rehearing Denied Jan. 9, 1933.

En Banc.

Suit by the First National Bank of Chipley against C. E. Peel and another. From a decree in favor of the defendants, the complainant appeals.

Affirmed in part, and reversed in part, with directions. Appeal from Circuit Court, Washington County; Amos Lewis judge.

COUNSEL

James N. Daniel, of Chipley, for appellant.

John H Carter and John H. Carter, Jr., both of Marianna, for appellees.

En Banc.

OPINION

On November 7, 1929, judgment was entered in the circuit court of Washington county against C. E. Peel and R. W. Peel for the sum of $659.18, plus $9.90 costs. Execution was issued on the 5th day of December, 1929. Execution was returned unsatisfied. On the 15th day of July, 1930, the judgment creditor filed bill of complaint to subject certain real estate, one 55-acre tract, to the execution; it being alleged that this and one 80-acre tract of land were contiguous and were owned by C. E. Peel, although the record title to the 55-acre tract was in the brother of C. E. Peel one R. W. Peel, and it was alleged that the said R. W. Peel held the said 55-acre tract in trust for C. E. Peel. The record shows that the adjoining tract of 80 acres had been conveyed by the former owners thereof to C. E. Peel, but that the deed conveying the same had not been recorded.

On interrogatories being answered by C. E. Peel, it developed that the allegations in this regard were true. C. E. Peel filed answer to the bill however, and claimed both tracts as exempt to him as his homestead, and prayed injunction against sale.

The record shows that the salient facts of the case are: In 1923 C. E. Peel, with the help of his father, acquired the 55-acre tract, and, as he says, for safe-keeping had the deeds made conveying the record title to the brother of C. E. Peel, one R. W. Peel, in whom legal title has since remained. It is evident, however, that R. W. Peel holds the title in trust for C. E. Peel.

The 80-acre tract was acquired by C. E. Peel some time prior to January 16, 1927, upon which date C. E. Peel was married, but the deed was not recorded. On March 24, 1928, a child was born, the issue of the marriage of C. E. Peel.

From long prior to the marriage of Peel and until about July 15, 1930, the date the bill of complaint in this case was filed, Peel made his home on certain turpentine locations belonging to one Hutchinson, for whom he worked, and there is no evidence that he had taken any steps or performed any act converting or tending to convert either or both of the tracts of land here involved into a home further than the acquiring of title to the same. At the time the judgment was rendered, Peel had not in any manner, so far as the evidence in this case discloses, taken any steps toward establishing a home on either of the tracts of land. In fact, his dealing with the land up to that time was in law inconsistent with the intention of making it his homestead. He allowed the legal title to the 55-acre tract to remain in another party, and he held the conveyance of the 80-acre tract unrecorded.

Under the provisions of section 2802, R. G. S., section 4488, C. G. L., judgments of the circuit courts create a lien and are binding upon the real estate of the defendant in the county where rendered. Such judgments do not create a lien on equitable estates, and such estates are not subject to execution. Sebring Co. v. O'Rourke, 101 Fla. 885, 134 So. 556. When judgment in this case was rendered in Washington county on November 7, 1929, it became a lien on the 80-acre tract of land involved because at that time this tract of land had not acquired the status of a homestead or of a part of a homestead.

Whether or not the 55-acre tract may be held to be exempt as constituting a part of the homestead depends upon whether or not Peel's occupancy of it by moving himself and his family thereon for the purpose of claiming it as a homestead occurred prior to or after the institution of the suit by creditor's bill. In other words, if Peel proceeded to give to that tract of land the homestead status before the institution of the suit filed to subject it to the judgment that it would be exempt, but, if he performed that act after the institution of the suit, it could not have the effect of making the property exempt as homestead, because the decree would establish the rights of the parties as of the date of the institution of the suit. Aldrich v. Boice, 56 Kan. 170, 42 P. 695; 29 C.J. 862; McComb v. Thompson, 42 Ohio St. 139. A judgment of a court of law is not a lien upon land to which the judgment debtor has no legal title. Cheves v. First National Bank, 79 Fla. 34, 83 So. 870. See section 4488(2802), C. G. L.; Jacobs v. Scheurer, 62 Fla. 216, 57 So. 356; Miller v. Berry, 78 Fla. 98, 82 So. 764; Sebring Co. v. O'Rourke, 101 Fla. 885, 134 So. 556.

The demurrer to the answer and motion to strike the answer interposed by Peel raises the question as to whether or not such answer is sufficient to show that the property involved is exempt from forced sale under execution as the homestead of the judgment debtor.

The demurrer and motion to strike was overruled. There was also a later order striking a replication of the complainant, but it is unnecessary for us to take cognizance of this.

While we have heretofore held that the homestead right may be protected by the homestead claimant at any time after it has once been established, it does not follow that the homestead status may be brought into being at any time to the exclusion of preexisting liens or conveyances.

In the case of Pasco v. Harley et al., 73 Fla. 819, 75 So. 30, 31, it is said:

'Where judgment and execution liens upon a debtor's property are obtained by a creditor in enforcing payment of the debtor's promissory notes at a time when the debtor was not the head of a family and consequently not entitled to homestead exemption, the debtor, upon subsequently becoming the head of a family by marriage, is not entitled to homestead exemptions in the property on which the statutory judgment and execution liens already exist, to the exclusion of the preexisting liens.

'The Constitution forbids judgment and execution liens only on 'exempted property,' and the property of a person who is not the head of a family is not 'exempted property' under the Constitution.'

In the opinion in this same case it is said:

'A statutory lien is as binding as a mortgage and has the same capacity to hold land, so long as the statute preserves its force. Rankin v. Scott, 12 Wheat. 177, 6 L.Ed. 592. There can be no difference in principle beween There can be no difference in principle between one is as binding as the other. Andrews v. Doe ex dem. Wilkes, 6 How. (Miss.) 554, text 568, 38 Am. Dec. 450; Moseley v. [Doe ex dem.] Edwards, 2 Fla. 429, text 430, 439; Kimball v. Jenkins [11 Fla. 111, 89 Am. Dec. 237], supra.'

And, further, in the same opinion it is said:

'The right to the 'exemptions' may accrue after the property is acquired, by the owner becoming 'the head of a family residing in this state.' The right to the 'exemptions' 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; Herrin v. Brown, 44 Fla. 782, 33 So. 522, 103 Am. St. Rep. 182; Johns v. Bowden, 68 Fla. 32, 66 So. 155. Or as to real estate by its abandonment as the home of the family. Barclay v. Robertson, 67 Fla. 416, 65 So. 546; Murphy v. Farquhar, 39 Fla. 350, 22 So. 681; McGregor v. Kellum, 50 Fla. 581, text 589, 39 So. 697.'

In this case the judgment became a lien on the 80-acre tract on the date of its rendition, and that lien could not be canceled by the attempted conversion of the property into a homestead after the lien attached.

In Semple v. Semple, 82 Fla. 138, 89 So. 638, 640, will be found a correlation and discussion of authorities and especially cases...