Knapp v. Fredricksen

• Decision Date: 24 October 1941
• Citation: 4 So.2d 251,148 Fla. 311
• Court: Florida Supreme Court
• Parties: KNAPP et al. v. FREDRICKSEN.

4 So.2d 251

148 Fla. 311

KNAPP et al. v. FREDRICKSEN.

Florida Supreme Court

October 24, 1941

Rehearing Denied Nov. 3, 1941.

Appeal from Circuit Court, Martin County; Thad H Carlton, judge.

Carroll Dunscombe, of Stuart, for appellants.

Arthur R Clonts and Harry F. Dyer, both of Stuart, for appellee.

BUFORD, Justice.

This is the third appearance of this cause here. See Green et al. v Fredricksen 139 Fla. 862, 191 So. 14; Knapp v. Fredricksen, Fla., 1 So.2d 181.

After the mandate went down affirming the decree of foreclosure, Richie Knapp filed petition to be allowed to intervene and set up a claim of title to the property involved. Petition was denied with leave to amend. Amended petition was filed and denied. Appeal was entered.

There was no effort made to charge the estate of Richard H. Knapp, deceased, with personal judgment or decree for any deficiency which might exist after applying proceeds of sale and neither the executor nor administrator of the estate of Richard H. Knapp was made a party to the proceedings. Therefore, the decree amounted to one of foreclosure only and no liability is adjudicated against the estate.

The record shows that the deed under which Richard H. Knapp and Monira C Knapp, the mortgagors, acquired the title to the mortgaged lands was made to 'Richard H. Knapp and Monira C. Knapp, his wife'.

In Menendez et al. v. Rodriguez, 106 Fla. 214, 143 So. 223, 226, we held: 'As shown above, the common law of England is expressly made a part of the law of Florida; and, by the rules of the common law, a conveyance of real estate in fee simple to husband and wife creates an estate by entireties in them, at least where a lawful contrary interest is not duly shown; and, at the death of one spouse, the entire estate in the property vests in the survivor.' And we also held: 'Where a family home place is owned by the husband and wife as tenants by entireties, under the common law in force in this state, upon the death of one spouse, the entire estate in the land so owned, is by operation of law vested in the survivor to the exclusion of the heirs of the deceased spouse. Where the husband is the head of the family entitled to a homestead exemption in land owned by the husband and wife as tenants by entireties, his exemption at his death terminates with his estate in the land, which land by operation of law immediately becomes the sole property of the surviving wife. As the husband's interest in an estate by entireties ceases at his death, it cannot pass to his heirs under the statute, and as they, as such heirs, have no estate or interest in the land, there is no exemption to inure to them under the Constitution. If the widow acquired and retains homestead exemption rights in property after the death of the husband, such exemption, if existing at her death, would inure to her heirs. Section 2, art. 10, Constitution.' See also Coleman v. Williams, Fla., 200 So. 207.

The appellant says in his brief:

'The main question involved in this appeal is, if the husband and wife take a joint deed to property, and showing no intent to specifically create an estate by the entireties, and the deed runs to the heirs of...