Frase v. Branch, 77-1342

• Decision Date: 26 July 1978
• Docket Number: No. 77-1342,77-1342
• Citation: 362 So.2d 317
• Parties: Laura F. FRASE, Administratrix of the Estate of John A. Meyer, Deceased, also known as J. A. Meyer, Jennifer M. Brazell and Edward Brazell, her husband, William B. Meyer and A. R. Meyer and Ruth Meyer, his wife, Appellants, v. J. M. BRANCH and Marian L. Branch, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 317

362 So.2d 317

Laura F. FRASE, Administratrix of the Estate of John A. Meyer, Deceased, also known as J. A. Meyer, Jennifer M. Brazell and Edward Brazell, her husband, William B. Meyer and A. R. Meyer and Ruth Meyer, his wife, Appellants, v. J. M. BRANCH and Marian L. Branch, his wife, Appellees.

No. 77-1342.

District Court of Appeal of Florida, Second District.

July 26, 1978.

Rehearing Denied Aug. 30, 1978.

John F. Bennett of Fishback, Davis, Dominick & Simonet, Orlando, for appellants.

T. Richard Hagin of Getzen & Hagin, Bushnell, for appellees.

HOBSON, Acting Chief Judge.

In this appeal we are confronted with the question of whether homestead rights will defeat an agreement for deed in which the grantor's spouse did not validly join where the grantor owned the property separately and the grantor and his spouse retained more than 160 contiguous acres of rural land in excess of the property subject to the agreement. The trial court answered this question in the affirmative. We answer this question in the negative and reverse the final judgment of the trial court.

The facts are not in dispute. The grantor, J. M. Branch, bought 360 contiguous acres of rural land and took title in his name alone. Later, the grantor and his wife took title by the entireties to another 80 acres which is contiguous with the original 360 acres. Mr. and Mrs. Branch constructed a home on this land and have lived there since 1945. In 1961, Mrs. Branch was physically and mentally disabled. In 1971, Mr. Branch entered into an agreement for deed with a close friend, John Meyer. The agreement covered 40 acres of the original 360 acres purchased by Mr. Branch. Fulfillment of the terms of agreement for deed would leave Mr. and Mrs. Branch with 400 contiguous acres of land containing their homesite. While Mrs. Branch's signature appeared on the agreement, there is now no dispute that it is invalid due to her mental incompetency. Mr. Meyer assumed exclusive dominion over the 40-acre tract sold by Mr. Branch. John Meyer died in 1973 after having paid $4,500 under the agreement. Laura Frase, as administratrix of Meyer's estate, brought action in the trial court to obtain specific performance of the agreement for deed. Mr. and Mrs. Branch asserted homestead as an affirmative defense and paid $4,500 into the registry of the court. At the bench trial, Mr. Branch testified to the portions of the 440-acre tract which he selected as homestead. Included in this selection of the 160-acre homestead tract was the 40 acres subject to the agreement for deed. The trial resulted in a final judgment which found that Mrs. Branch was mentally incompetent at the time she joined in execution of the agreement, that the agreement for deed was void, and that Mr. and Mrs. Branch had not abandoned the 40 acres in a manner defeating their homestead rights to that parcel. Accordingly, the trial court denied specific performance, quieted title in Mr. Branch, and ordered payment to Meyer's administratrix of the $4,500 deposited into the registry of the court.

Homestead rights have long been embodied in the organic law of this state (See Baker v. State, 17 Fla. 406 (1879) interpreting the homestead provision of the Florida Constitution of 1868.) The purpose of these protections is to preserve a home for the family, even at the sacrifice of just demands, and to protect the family from destitution and want. Hill v. First National Bank of Marianna, 79 Fla. 391, 84 So. 190 (1920). The provisions of homestead laws should be carried out in the liberal beneficent spirit in which they are enacted. Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912); Jetton Lumber Co. v. Hall, 67 Fla. 61, 64 So. 440 (1914). Nevertheless, great care should be taken to prevent homestead laws from becoming instruments of fraud, an imposition on creditors, or a means to escape honest debts. Id.; see also Vandiver v. Vincent, 139 So.2d 704 (Fla. 2d DCA 1962).

Homestead protections are not unlimited. In Florida, homestead property may consist of up to 160 contiguous acres of qualified rural land. In Florida, as well as in many other states, property in excess of the homestead, though part of the same tract, may be made subject to the obligations of the landowner. See Weiss v. Stone, 220 So.2d 403 (Fla. 3d DCA 1969); Barco v. Fennell, 24 Fla. 378, 5 So. 9 (1888); 1 American Law of Property § 5.82 (A. J. Casner ed. 1952); 40 C.J.S. Homesteads §§ 43, 146 (1944); 40 Am.Jur. Homestead § 40 (1968); Annot. 45 A.L.R. 395, 413 (1926).

In the case at bar, Mr. and Mrs. Branch owned a total of 440 contiguous acres of rural property. They were entitled to select only 160 contiguous acres as their homestead, leaving 280 excess acres. The 280 acres of excess land were subject to the obligations of the owner. If the 40-acre tract alienated by Mr. Branch was a part of his 280 acres of excess land, then the 40 acres is subject to his obligations. Accordingly, the homestead laws would not prevent specific performance of the agreement for deed to the 40-acre tract.

The force of the argument made on behalf of Mr. and Mrs. Branch is not that any part of the 280 acres of excess land was not alienable without valid joinder of Mrs. Branch, but that the trial court properly ruled that Mr. Branch could not be held to have selected his homestead property from land other than the tract subject to the agreement for deed. Thus, apparently for the first time, a court of this state is squarely presented with the issue of whether an instrument, alienating property which is in excess of the homestead amount and nonessential to the homestead protection, operates as a selection of homestead to the exclusion of the alienated property from the land from which homestead may be selected. If this issue is answered in the affirmative, then the alienated property is not homestead and the validity of the instrument of alienation is not affected by the failure to join the grantor's spouse.

The courts of many other jurisdictions have considered this issue and quite uniformly held that the instrument of alienation acts as a selection of homestead by exclusion of the alienated tract. The general rule has been stated as follows:

"Where the owner of a tract of land sells part of it, if the part retained is sufficient to constitute homestead and the part sold is not essential to the homestead, the sale is an election to treat the part retained as homestead and not the part granted." 40 Am.Jur.2d Homestead § 82 (1968).

"(H)ence, a sale of such excess is not rendered invalid because it fails to comply with the statutory requirements for the conveyance of homesteads." 40 C.J.S. Homesteads § 146 (1944).

The sale of such excess land is not rendered invalid because the grantor's spouse had failed to join in the instrument. Accord, Kunkel v. Kunkel, 515 S.W.2d 941 (Tex.Ct.Civ.App.1974) (on...