Hill v. First Nat. Bank

Decision Date16 May 1917
Citation73 Fla. 1092,75 So. 614
PartiesHILL et al. v. FIRST NAT. BANK OF MARIANNA et al.
CourtFlorida Supreme Court

Appeal from Circuit Court, Jackson County; Cephas L. Wilson, Judge.

Suit in equity for an injunction by Hannah Hill and others against the First National Bank of Marianna and H. A. Bowles, as sheriff of Jackson county, Fla. Decree for defendants, and complainants appeal. Reversed.

Syllabus by the Court

SYLLABUS

The head of a family residing in this state is entitled to an exemption under the Constitution of whatever undivided interest he or she may have in the lands of which he or she may be in possession and living upon to the extent designated in the Constitution.

Special replications in chancery proceedings have been discontinued in this state except by leave of the court for cause shown.

What constitutes being the head of a family, within the meaning of the constitutional provisions exempting property from forced sale under process of any court, is a question depending upon the facts and circumstances of each case. A witness should not be permitted to say whether one is or is not the head of a family, but his testimony should be confined to the facts and circumstances which are deemed to establish that status.

Possession of land is a sufficient interest to cause the exemption provided for under the Constitution to attach, when the possession is held by the head of a family with the consent and upon the agreement of the owner of the title.

Upon the death of the head of a family residing in this state, his interest in the homestead property descends to his heirs free from any liability for his debts.

An answer in chancery to a bill to restrain the forced sale of a homestead, which merely avers that the land had been divided into lots by the head of the family with the intention of dividing it between the children and grandchildren constitutes no defense to the bill.

COUNSEL D. L. McKinnon, of Marianna, for appellants.

Paul Carter, of Marianna, for appellees.

OPINION

ELLIS, J.

A suit in equity was begun by appellants in the circuit court for Jackson county against the appellees for an injunction against the sale, under judgment and execution, of a certain tract of 80 acres of land in that county, claimed by the appellants, who were the complainants below, to be the homestead of Hannah Hill.

The bill in substance alleges: That Hannah Hill and two of her sons, John and Edward, in 1901 acquired by purchase 80 acres of land in Jackson county described as the E. 1/2 of N.E. 1/4 of section 8, township 4 N., range 10 W. That they became tenants in common each seised of an undivided onethird interest in the land. That they immediately went into actual possession of the land and have ever since lived thereon. In 1908, they conveyed one acre of this tract to another son of Hannah, named Henry, who immediately took possession improved the land, and has since lived on it. That John Hill died on the 27th day of June, 1915, without wife, children or their descendants. That when John died he was the head of a family consisting of his mother and the children of a deceased sister for whom he provided a home on the place. That, having control of his mother's interest in the land, he 'transacted and supervised all business of the family,' and had done so for many years before his death. That in November, 1915, Edward Hill died, leaving a wife and eight children surviving him. That, upon the death of John Hannah assumed the management of the household and became its head. That she provides a home and living for her grandchildren, two of whom are minors, and they all live together upon the place described in the bill as their home. The bill alleges that the 'Bank' brought suit against Hannah and against H. A. Bowles as administrator of the estate of John Hill, and caused an attachment to be levied upon the lands and a lis pendens to be recorded, obtained judgment and execution, and the 'sheriff has levied the execution upon said lands and will proceed to sell the same'; that the 'complainant' has claimed the land as her homestead and forbidden the sheriff to sell it, and demanded that he release it from the levies of the two writs, 'but he has refused to do so, and will sell the same under said attachment and execution unless enjoined from doing so by this court.' The bill prays for an injunction against the defendants enjoining them from selling the land under the execution; that the levy of the writs of execution and attachment be canceled, as also the lis pendens; that Hannah Hill be declared to be entitled to the exemption of her two-thirds interest in the lands as the head of a family; and for general relief.

The answer denies the material allegations of the bill, except the purchase of the property by Hannah and her two sons, and the death of the latter in 1915. It admits that the First National Bank of Marianna obtained a judgment against Hannah and the had caused an attachment to be levied upon had caused an attachment to be levied upon the land, but denied the record of a lis pendens notice. The answer denied the levy of the execution upon the land in the following words:

'These defendants deny that the sheriff of Jackson county, Fla., has levied an execution upon the said land and will proceed to sell the same under the said levy thereby casting a cloud upon the complainants' title unless enjoined by this court from doing so. And in this connection say that no levy under execution has been made by the sheriff of Jackson county, Fla., upon the said land under execution.'

The answer also alleges that the sheriff has no instruction to levy upon and sell the land under the execution. It also alleges that in September or October, 1915, Hannah Hill caused the land to be divided into eight lots, and in 'September, 1915, she made, executed and delivered her deed to said lots as will more fully appear by reference to a certified copy of said deed' which was attached to the answer as Exhibit A, and made a part of it. It was also alleged that a plat of the said division was attached to the answer as Exhibit B. This exhibit, however, does not appear in the record. The deed referred to in the answer was executed by Hannah Hill in favor of Henry Hill, who was made grantee both individually and in a representative capacity. Individually he took under the deed lot C. containing 10 3/7 acres; as guardian of Hannah, Isaac, and Rachel Dickson, he took lot A containing 6 acres; as guardian of Gussie Dickson, Joe and Willie Calloway, he took lot D, containing 10 3/7 acres; as guardian of Brown, Daisy, and Hosea Collins, lot E, containing the same number of acres; and as trustee of Lee Hill he took lot F, containing the same acreage.

It thus appears that the grantor attempted by this deed to convey her twothirds interest, which was her entire undivided interest, in only 47 5/7 acres of the land, which, with the 1 acre already conveyed to Henry Hill by his mother and two brothers, made 48 5/7 acres. The undivided one-third interest of Edward Hill in the entire tract of 80 acres, and which upon his death was inherited by his wife and eight children, was not affected by this conveyance. Now, even if the deed conveys Hannah's undivided twothirds interest in specific portions of the 80 acre tract described by the lots A, C, D, E, and F. she still retains an undivided twothirds interest in the remaining 31 2/7 acres which were not affected by the conveyance. If therefore she was the head of a family consisting of herself and two infant grandchildren, she was entitled to an exemption under the Constitution of that interest in that portion of the tract of land unaffected by the conveyance. See Adams v. Clark, 48 Fla. 205, 37 So. 734; Armour & Co. v. Hulvey, 74 So. 212, decided at this term; Pasco v. Harley, 75 So. 30, decided at this term and filed May 5, 1917, in which the court said:

'The exemptions 'from forced sale under process of any court,' of certain homestead property 'owned by the head of a family residing in this state,' have reference to the beneficial interests as owned by the head of a family in the specified classes of property.'

See, also, Bailey v. D. R. Dunlap Mercantile Co., 138 Ala. 415, 35 So. 451; King v. Welborn, 83 Mich. 195, 47 N.W. 106, 9 L. R. A. 803; Milton v. Milton, 63 Fla. 533, 58 So. 718; Wike Bros. v. Garner, 179 Ill. 257, 53 N.E. 613, 70 Am. St. Rep. 102; Brokaw v. Ogle, 170 Ill. 115, 48 N.E. 394; Clark v. Thias, 173 Mo. 628, 73 S.W. 616; Meguiar, Helm & Co. v. Burr, 81 Ky. 32; McGrath v. Sinclair, 55 Miss. 89; Jenkins v. Volz, 54 Tex. 636. See, also, 13 R. C. L. p. 572.

Hannah Hill, one of the complainants, asked leave to file a special replication which admitted the signing of the deed by Hannah Hill, but attacking it as a deed of conveyance of her interest in the lands described, alleging that it was executed to take effect only at her death as a will; that her children so understood the purpose of the instrument; that she was to remain in possession of the land during her life; that she has ever since remained in possession of the land controlling the same as she did before the signing of the paper; that at the time of signing the instrument she was ignorant as to its legal effect; and that she repudiated it as soon as she was advised concerning its legal effect. The application to file this special replication was denied. Thereupon a general replication was filed, testimony was taken before the chancellor, who rendered his final decree adjudging the equities to be with the defendants, and dismissing the bill of complaint. The complainants appealed from this decree.

Four of the assignments of error attack the order of the chancellor denying the complainants leave to file...

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