Kerivan v. Fogal
| Decision Date | 19 June 1945 |
| Citation | 22 So.2d 584,156 Fla. 92 |
| Parties | KERIVAN et al. v. FOGAL et al. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Hillsborough County; Harry N Sandler, judge.
R. G Tittsworth, of Tampa, for appellants.
B. L Cooper and Rufus T. D. Cooper, both of Tampa, for appellees.
A most interesting state of facts appears in the record of this case, and about it there seems to be no dispute, the only difference between the parties being the principles of law appropriately to be applied.
A young woman, aged thirty, met in Tampa a man more than fifty years her senior and married him. A few days later he purchased a home which was conveyed to both, thus creating what would have been, in ordinary circumstances, an estate by the entirety. Within three months he died, but she continued to occupy the property for several months, then sold it for cash to purchasers who evidently took every precaution to determine from the record the true status of the title. After all this it developed that the ostensible widow, who had deeded the property, apparently hers on the death of her husband, had been, at all times relevant to this history, wed to another. To all appearances she and the intestate were man and wife and during the short period between the marriage and his death they lived together on the property as if such relationship truly existed. It may be fair to comment here that in her testimony she explained her false position by saying that she thought her preceding husband had obtained a divorce. Evidently she had not taken the trouble to learn whether that was a fact before she remarried, accepted title to the property in question and conveyed it to the appellee-purchasers, although of course there was ample time and opportunity for her to inform herself on the matter.
Clearly the parties against whom relief is sought in this controversy were innocent purchasers from a bogus widow. Neither they nor their attorney had any knowledge whatever but that she was the survivor and could convey the whole estate. Evidently the deceased had departed this life in total ignorance of his bride's deception.
Wishing to avoid any possibility of confusion, we remark here that only two deeds are involved in this controversy, namely, the one apparently creating the estate by the entirety and the one conveying the interest of the survivor to the appellee-purchasers.
It was prayed in the bill that the latter be declared void, not having been executed by the lawful husband of the perpetrator of the fraud; that the former be adjudged not to have established an estate by the entirety; that the heirs--they now stand in the place of their ancestor--be decreed to own an undivided half interest, inasmuch as a tenancy in common resulted from the first conveyance; that the other half be ordered conveyed to the appellants by the spurious widow and her then husband, she having obtained the property fraudulently; and that the present owners--appellees--be required to disgorge reasonable rental for the period they occupied the property.
No affirmative relief was sought in the answer.
Before proceeding to a discussion of the issues we emphasize that it is plain from the prayer of the bill that the appellants actually claim relief under the former deed and, claiming under it, recognize the instrument.
Obviously the widow, despite her insistence that at the time of the marriage to the intestate she thought she had been divorced from a previous husband, was guilty of fraud and did not become a tenant by the entirety. Doubtless the man who considered himself her husband could have eliminated any claim she made to the property had he detected her duplicity before he died. Presumably his heirs could pursue such a course had the second deed not been given and were the title now still in the names of the grantees in the first deed. It may well be that the second deed, dated 16 February 1938, from her to the appellee-purchasers were void, not having been executed by the then husband (Sections 693.01 and 708.04, Florida Statutes 1941, and F.S.A.), but we cannot dispose of this case solely on that conclusion. See Phillips v. Lowenstein et al, 91 Fla. 89, 107 So. 350, cited by appellants.
It was decided in Cornell v. Ruff, 105 Fla. 504, 141 So. 535, that a contract to sell executed by a married woman who represented herself to be single was ineffective and could not be enforced, also in Protective Holding Corporation v. Cornwall Co., 127 Fla. 252, 173 So. 804, that a married woman could not invest herself with legal capacity to execute a mortgage. In still another case, Wilkins v. Lewis, 78 Fla. 78, 82 So. 762, this court dealt with a situation where a woman had given a mortgage describing herself as a widow although she was at the time married, and the court held the instrument void and her misrepresentation of celibacy ineffectual to bring into play the doctrine of estoppel.
Appellees, the purchasers, remind us that inasmuch as the appellants could have had no possible claim against them had the...
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