Francis v. Francis

• Decision Date: 18 July 1938
• Citation: 182 So. 833,133 Fla. 495
• Parties: FRANCIS v. FRANCIS.
• Court: Florida Supreme Court

182 So. 833

133 Fla. 495

FRANCIS v. FRANCIS.

Florida Supreme Court

July 18, 1938

Divorce suit by Alice Perkins Francis against John L. Francis. From a part of the final decree settling property rights between the parties, the complainant appeals.

Affirmed.

ELLIS C.J., dissenting. Appeal from Circuit Court Polk County; H. C. Petteway, judge.

COUNSEL

Willson & Martin, of Bartow, for appellant.

Ira C Hopper, of Lakeland, for appellee.

OPINION

BUFORD Justice.

The appeal in this case is from that part of a final decree providing as follows:

'Neither party has any money and the only property is the home place of the parties located on Lake Hollingsworth, in Lakeland, Polk County, Florida, which property is hereinafter specifically described. The complainant is wholly unable to earn anything and is at this time being taken care of by a son. The defendant no longer has any earning capacity and is wholly unable to contribute anything to the complainant by the way of solicitors' fees, or support money.

'It appears that the property referred to as the home place is in the name of the complainant, but it also appears that at the time said property was purchased, a great many years ago, it was agreed between the parties that the title should be taken in the names of both the complainant and the defendant, and it further appears that while the complainant paid the major portion of the purchase price of said property, the defendant paid some part of the purchase price, and it further appears that relying on said agreement that the property, should be the property of both of them and treating the property as the property of both of them, and believing that the title was in the name of both of them as agreed, the defendant, out of his own funds, built a large and valuable bathing pavillion and dance hall on the said property, and that this building was erected over the waters of Lake Hollingsworth, and of course, had an above-the-water walk from the shore line of the said home place property to the building. This building was used for many years by the defendant in making a livelihood for the parties and was considered part of the home place property and was considered to belong to both of the parties.'

And the further provision:

'It is further ordered, adjudged and decreed that the fee simple title to the home place of the complainant and defendant, described as follows, to-wit:

'The West 5 1/2 acres of Lot 3 of Geo. H. Watson's Subdivision of NE 1/4 of SE 1/4 in Section 30, Township 28 South, Range 24 East, having a frontage of 170.1 feet along the South boundary line of Lot 3 and situate in the City of Lakeland, County of Polk and State of Florida,

including the bathing and dance pavillion located on Lake Hollingsworth and connected with the shore line of said property, be and the same is hereby decreed vested in complainant and defendant as an estate by the entirety and that upon the entry of this divorce, said property will be vested in complainant and defendant, as tenants in common.

'It is further ordered, adjudged and decreed that the restraining order heretofore entered in this cause on the 11th day of June, 1934, duly recorded in Chancery Order Book 73, page 70, against the defendant John L. Francis be, and the same is hereby dissolved; that the said defendant John L. Francis shall be permitted to take such legal action as he may deem advisable, either by a partition or otherwise to protect and secure his rights in said property in accordance with this decree, but that he shall not personally attempt to take possession of any of said property except the said bathing pavillion except and unless such possession is acquired in some proper legal proceeding or by a further order of this Court.'

The decree was...