Johnson v. Landefeld

• Decision Date: 06 June 1939
• Parties: JOHNSON et ux. v. LANDEFELD et al.
• Court: Florida Supreme Court

189 So. 666

138 Fla. 511

JOHNSON et ux. v. LANDEFELD et al.

Florida Supreme Court

June 6, 1939

En Banc.

Proceeding between Albert Johnson and Mabel Johnson, his wife, and C. H Landefeld, Jr., as executor of the estate of Annie Johnson deceased, and as administrator de bonis non cum testamento annexo of the estate of Alfred Johnson, deceased, and others for a declaratory decree as to the legal effect of a certain conveyance of realty. From an adverse decree, Albert Johnson and Mabel Johnson, his wife, appeal.

Affirmed by equally divided court. Appeal from Circuit Court, Broward County; Geo. W. Tedder, judge.

COUNSEL

John W Whelan, of Hollywood, for appellants.

T. D. Ellis, Jr., and C. H. Landefeld, Jr., both of Hollywood, for appellees.

OPINION

PER CURIAM.

In this cause Mr. Justice BROWN, Mr. Justice BUFORD and Mr. Justice THOMAS are of opinion that the decree of the Circuit Court should be reversed, while Mr. Chief Justice TERRELL, Mr. Justice WHITFIELD and Mr. Justice CHAPMAN are of opinion that the said decree should be affirmed. When the members of the Supreme Court sitting six members in a body and after full consultation, it appears that the members of the Court are permanently and equally divided in opinion as to whether the decree should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the decree should be affirmed; therefore it is considered, ordered and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the decree of the Circuit Court in this cause be and the same is hereby affirmed.

Affirmed.

TERRELL, C.J., and WHITFIELD, BROWN, BUFORD, CHAPMAN, and THOMAS, JJ., concur.

CONCURRING CONCURRING

WHITFIELD, J.

This appeal is from a declaratory decree as to the legal effect of a conveyance of real estate not the homestead by the husband to himself and his wife as tenants by the entireties, the wife being the niece of the husband.

The chancellor in effect held the conveyance to be effectual to create an estate by the entireties; and that as the marriage was not void but only voidable, after the death of both husband and wife, such conveyance was good against a subsequent devise of the same property to the son of the husband.

A man having title to real estate not his homestead may by appropriate deed convey it to his wife and to himself as tenants by entireties so that such property will not pass to a son under a subsequent will of the grantor husband. The legal effect of the deed in this case is to convey to the wife an interest in the entire estate equal to that reserved by the husband, and the express intent is to create an estate by the entireties. See Sec. 5670(3797), C.G.L.; In re Klatzl's Estate, 216 N.Y. 83, 110 N.E. 181; Boehringer v. Schmid, 254 N.Y. 355, 173 N.E. 220; Coon v. Campbell, 138 Misc. 567, 240 N.Y.S. 772. The deed executed by the husband and wife in legal effect conveys to the wife and reserves to the husband. It affords the five requisites of unity of interest, of title, of time, of possession, and of husband and wife. See 19 Am.Jr. p. 465, sec. 6; 13 R.C.L. p. 1096 et seq.; Dutton v. Buckley, 116 Or. 661, 242 P. 626; 62 A.L.R. text 520; In re Vandergrift's Estate, 105 Pa.Super. 293, 161 A. 898.

While the statutes of Florida forbid the marriage of a man to his niece, the statute also makes such a marriage a ground for divorce a vinculo matrimonii; therefore such a marriage is not void, but only voidable. Comp.Gen.Laws 1927, §§ 7558, 4983, subd. 1.

A conveyance of real estate not the homestead by a man to himself and his wife as tenants by the entireties, is not void because the wife is a niece of the husband, though such marriage is voidable as a ground for divorce; and after the death of both husband and wife, such conveyance to create an estate by the entireties will not be held to be void so as to give effect to a subsequently executed devise of the same property to a son by the husband.

Affirmed.

TERRELL and CHAPMAN, JJ., concur. BROWN, BUFORD and THOMAS, JJ., dissent.

CONCURRING CONCURRING

BUFORD Justice.

The appeal brings for review a declaratory decree as follows:

'1. That the legal effect of that certain deed dated May 31, 1928, executed by Alfred Johnson to Alfred Johnson and Annie Johnson, his wife, was to convey the following described property, situate in Broward County, Florida, to-wit: East half (E 1/2) of Southwest quarter (SW 1/4) of Northeast quarter (NE 1/4) of Southeast Quarter (SE 1/4) and West half (W 1/2) of Southeast quarter (SE 1/4) of Northeast quarter (NE 1/4) of Southeast quarter (SE 1/4) of Section 34, Township 50, South, Range 42 East, to said Alfred Johnson and Annie Johnson, his wife, as an estate by the entirety.

'2. That upon the death of the said Alfred Johnson on the 10th day of January, A. D. 1935, the title to said property vested in said Annie Johnson by survivorship under said estate by the entirety, and said property became the property of the said Annie Johnson.

'3. That upon the death of Annie Johnson on the 5th day of February, A. D. 1935, title to said property under and by virtue of the Last Will and Testament of said Alfred Johnson through devise therein, became the property of defendants Alfred Kenneth Ford and Frank Clifford Ford, a minor, share and share alike, and said defendants Alfred Kenneth Ford and Frank Clifford Ford, a minor, are now the owners of the fee simple title to said property, share and share alike, the interest therein of said minor, Frank Clifford Ford, being represented by R. E. Dilg as Guardian of the person and estate of said Frank Clifford Ford, a minor.

'4. That no title to said property passed to defendant Albert Johnson under and by virtue of the Last Will and Testament of Alfred Johnson, deceased, because said Alfred Johnson was not seized or possessed of said property, or the owner thereof, upon the date of his death on account of the previous conveyance of said property by said deed dated May 31, 1928.

'5. That defendant Mrs. Alfred Kenneth Ford, wife of Alfred Kenneth Ford, has only her inchoate right of dower in said property as to the interest therein of her husband, Alfred Kenneth Ford; and defendant Mabel Johnson, wife of defendant Albert Johnson, has no interest in said property.

'6. That C. H. Landefeld, Jr., as Executor of the estate of Annie Johnson, deceased, and as Administrator de bonis non cum testamento annexo of the estate of Alfred Johnson, deceased, is hereby ordered and directed in accordance with the previous adjudication and determination of the rights of the parties defendant herein to carry out the terms of this decree as Executor of the estate of Annie Johnson, deceased, and said Plaintiff is directed and ordered that said property is the property of defendants Alfred Kenneth Ford, and Frank Clifford Ford, a minor, as represented by R. E. Dilg, his Guardian; said plaintiff is further directed and ordered as Administrator de bonis non cum testamento annexo of the estate of Alfred Johnson, deceased, that the Will of said Alfred Johnson, deceased, was completely ineffectual as to the devise of the property involved herein to defendant Albert Johnson.'

The deed from Alfred Johnson to Alfred Johnson and Annie Johnson, his wife, is as follows:

'This Indenture, Made this 31st day of May, A. D. 1928, between Alfred Johnson of the County of Broward, in the State of Florida, party of the first part, and Alfred Johnson and Annie Johnson his wife of the County of Broward, in the State of Florida, parties of the second part.

'Witnesseth: That the said party of the first part, for and in consideration of the sum of Ten Dollars and other good and valuable consideration Dollars to him in hand paid by the parties of the second part, the receipt whereof is hereby acknowledged, has granted, bargained and sold to the said parties of the second part, their heirs and assigns forever, the following described land, situate, lying and being in the County of Broward and State of Florida, to-wit: East Half (E 1/2) of Southwest Quarter (SW 1/4) of Northeast Quarter (NE 1/4) of Southeast quarter and West Half (W 1/2) of Southeast quarter (SE 1/4) of Northeast quarter (NE 1/4) of Southeast quarter (SE 1/4) all in Section thirty four (34), Township Fifty (50) South, Range Forty-two (42) East; said lands situate, lying and being in Broward County, Florida. And the said party of the first part does hereby fully warrant the title to said land, and will defend the same against the lawful claims of all persons whomsoever.

'In witness whereof, the said party of the first part does here unto set his hand and seal the day and year above written.

'Signed, sealed and delivered in presence of us:'

Alfred Johnson, the grantor, and Alfred Johnson, the grantee, were one and the same person. So, the first question is: 'May an owner of real estate change the status of his title by a conveyance in which he is both grantor and grantee?'

Every deed conveying real estate must have a grantor and a grantee 8 R.C.L. 951; Natchez v. Minor, 9 Smedes & M. 544, 48 Am.Dec. 727; Dupree v. Dupree, 45 N.C. 164, 59 Am.Dec. 590; Weihl v. Robertson, 97 Tenn. 458, 37 S.W. 274, 39 L.R.A. 423. And one person cannot occupy, at law, at the same time the position of both grantor and grantee in regard to the same property. 8 R.C.L. 951; Pope v. Brandon, 2 Stew., Ala., 401, 20 Am.Dec. 49; 18 C.J. 159; Green v. Cannady, 77 S.C. 193, 57 S.E. 832; Cameron v. Steves, 9 N. Brunsw. 141.

In the Green case, supra, it is said [77 S.C. 193, 57 S.E. 835]:

'The next question is whether in a deed purporting to convey the fee to several persons named, including the grantor, any portion of the...