Gulf Refining Co. v. Ankeny

• Decision Date: 24 June 1931
• Citation: 135 So. 521,102 Fla. 151
• Parties: GULF REFINING CO. v. ANKENY et al.
• Court: Florida Supreme Court

135 So. 521

102 Fla. 151

GULF REFINING CO. v. ANKENY et al.

Florida Supreme Court, Division B.

June 24, 1931

Error to Circuit Court, St. Lucie County; Elwyn Thomas, Judge.

Action by Ruth Willis Ankeny and others against the Gulf Refining Company. To review an adverse judgment, defendant brings error.

Reversed.

BUFORD C.J., dissenting.

COUNSEL

Knight, Pace & Holt and A. C. Dressler, all of Miami, and Dame & Rogers, of Ft. Pierce, for plaintiff in error.

Fee &amp Liddon, of Ft. Pierce, for defendants in error.

OPINION

WHITFIELD P.J.

In an action of ejectment brought by the children of a deceased homestead owner, the defense was, not that the portion of the homestead real estate in controversy had been alienated by deed duly executed by the homestead owner and his wife, but that such homestead real estate had been abandoned as a part of the homestead by the deceased owner who had shortly before his death contracted for its sale and had delivered possession of it with the consent of his wife, who, pursuant to the contract of sale, executed a conveyance of the land to the purchaser after the death of the husband. The court directed a verdict for the plaintiffs, and the jury found the amount of damages. To a judgment on the verdict a writ of error was taken by the defendant.

It appears that Frank H. Willis owned thirteen acres of land on which he lived with his wife and their three minor daughters that he purchased an adjoining five acres, which were separated from the original homestead thirteen acres by a fence which was allowed to decay, leaving bushes on the old fence line; that the entire eighteen acres became the homestead of the husband-father and his family; that some years later the father listed the five acres with a real estate dealer for sale; that an offer for the five acres was accepted and $100 paid on the purchase price, for which a receipt was signed at the husband's request in his name by his wife, the husband being in poor health; that the proposed purchaser, by permission of the owner, had one or more days' work done among the fruit trees on the five acres, and took some fruit therefrom; that during the same month the homestead owner died, having devised all of his property to his wife, making her his executrix; that during the following month the widow devisee, upon payment of the purchase price, executed a deed of conveyance of the five acres to the wife of the purchaser who had paid the homestead owner $100 on the purchase price of the five acres; that subsequently the grantee conveyed the five acres to the defendant corporation.

As the deceased owner of the homestead real estate had children living, his attempted devise of his homestead real estate to his wife was ineffectual. Section 4, article 10, Constitution; Walker v. Redding, 40 Fla. 124, 23 So. 565.

'Organic and statutory provisions relating to homestead exemptions should be liberally construed in the interest of the family home. But the law should not be so applied as to make it an instrument of fraud or imposition.' Milton v. Milton, 63 Fla. 533, 58 So. 718, 719.

'The provisions of the homestead laws should be carried out in the liberal and beneficent spirit in which they were enacted, but at the same time great care should be taken to prevent them from becoming the instruments of fraud.' Pasco v. Harley et al., 73 Fla. 819, 75 So. 30, 32.

Homestead real estate cannot be alienated except by deed or mortgage duly executed by husband and wife, where such relation exists, Thomas et al. v. Craft et al., 55 Fla. 842 46 So. 594, 15 Ann. Cas. 118; but such homestead real estate may in whole or in part be abandoned as a homestead, by express declaration and conduct consonant with such declaration, or by conduct that clearly manifests an intention to abandon or...