LaGasse v. Aetna Ins. Co., 67--305
| Citation | 213 So.2d 454 |
| Decision Date | 07 August 1968 |
| Docket Number | No. 67--305,67--305 |
| Parties | Kathleen LaGASSE, Appellant, v. AETNA INSURANCE COMPANY, Appellee. |
| Court | Court of Appeal of Florida (US) |
Charles J. Cheves, Jr., of Wotitzky, Wotitzky & Schoonover, Punta Gorda; and Icard, Merrill, Cullis, Timm & Holroyd, Sarasota, for appellant.
Richard V. Harrison, Sarasota, for appellee.
This is an appeal from a final decree, ruling that certain realty owned by appellant Kathleen LaGasse, defendant below, and claimed by her as homestead was subject to a judgment lien and writ of execution held by appellee- alaintiff.
In the late 1920's and early 1930's, Everette C. Thompson, defendant's father, purchased the realty in question, which encompassed less than one-half acre located on 40th Street in Sarasota. Defendant, an only child, lived there with her parents until her marriage at age 24 to Henry LaGasse. After her marriage she and her husband and daughter resided on Clark Road in Sarasota.
Defendant's husband and his two brothers were engaged in the construction business under the corporate name of LaGasse Bros., Inc., of which defendant's husband was president. In connection with certain construction projects LaGasse Bros. furnished bonds on which plaintiff, Aetna, was surety. In connection with said bonds Aetna exacted an indemnity agreement signed by defendant's husband, both individually and as president of LaGasse Bros., by the other two LaGasse brothers and their wives, and also by defendant. LaGasse Bros. subsequently defaulted on the projects, and Aetna sued on the indemnity agreement, recovering a judgment of $91,500 against all the indemnitors except defendant's husband. This judgment was recorded on June 30, 1961. A writ of execution was issued on July 7, 1961, and was filed in the local Sheriff's office on July 10, 1961.
In January of 1964, defendant's husband deserted defendant and their daughter. He made support payments of $20 per week and also made sporadic payments on a first mortgage on the Clark Road property, but he made no payments on a second mortgage. By January of 1965, both mortgages were substantially in default. Defendant had in the meantime taken a job as a waitress.
In April, 1965, defendant's father died, leaving defendant's mother with a life estate in the 40th Street property and a vested remainder in fee in defendant. Defendant returned to the 40th Street home to care for her mother, who had become an invalid. She made frequent trips to the Clark Road house for the purpose of selling and removing furniture and personal effects. The Clark Road house was eventually lost through foreclosure. Defendant's mother died on September 8, 1965, at which time defendant's vested remainder in the 40th Street property ripened into fee ownership. Defendant's parents had maintained such property as their residence until their death, and before their death defendant had filed for homestead exemption For tax purposes on the Clark Road property.
On September 24, 1965, plaintiff instructed the Sheriff to levy upon defendant's interest in the 40th Street property. Notice of levy was served on September 27. On October 8, 1965, defendant filed a complaint seeking an injunction against the sale of her house. She voluntarily dismissed such suit on October 27, and on the same day filed a claim of homestead exemption at the sheriff's office. On December 1, 1965, plaintiff instituted this suit seeking a declaration that its judgment lien was superior in right to defendant's claim of homestead exemption. From the final decree rendered in favor of plaintiff and directing the sheriff to complete the sale under the levy previously made, defendant filed her notice of appeal. She assigns as error inter alia that portion of the final decree which holds that '* * * any Homestead Exemption or other claims of Kathleen LaGasse therein are inferior and subject to the rights of Aetna Insurance Company'. We agree with her contention and reverse the decree appealed.
Both parties to this cause seem to be bent upon evolving certain complex questions of both law and fact out of what we think is a relatively simple issue. The whole controversy here is governed by the determination of precedence as between a constitutional homestead and a judgment lien. But first we will dispose of some of the legal 'straw men' which have seemingly obscured the main point.
1. Plaintiff contends there is dispute as to the time Mrs. LaGasse actually established residence at the 40th Street property. Defendant's father died April 7, 1965, and her mother died 5 months later in September. Whether defendant could claim residence from the latter part of April or early May, as is amply supported by the evidence, is immaterial. The rule laid down in Collins v. Collins, 1942, 150 Fla. 374, 7 So.2d 443, is that occupancy within a reasonable time under all the circumstances is sufficient. Certainly Kathleen's occupancy with her 14 year old daughter within a few weeks after her father's death qualified her as a bona fide resident.
2. The fact that Kathleen filed for homestead tax emption on the Clark Road house is not to be construed as an attempt to claim two homesteads simultaneously. Homestead for tax purposes and homestead for purposes of exemption from forced sale, although related because both are part of the overall scheme of providing for preservation of the family dwelling, are not synonymous. Whether through choice or lack of it, by June 1965 Kathleen had abandoned the Clark Road property.
3. Plaintiff dwells at length on defendant's alleged lack of intent to make the 40th Street residence her permanent place of abode. In Engel v. Engel, Fla.App.1957, 97 So.2d 140, we find:
Certain it is that Kathleen LaGasse was making her home on the subject property and had asserted no intention to depart therefrom.
4. The fact that Kathleen, at the time of the attempted levy, made a statement to the deputy sheriff indicating doubt as to her ownership is not conclusive as to her lack of status as a homesteader. Ignorance of the law is no excuse for its violation, but it does not follow that one's lack of knowledge of his rights will serve to deprive him of those rights. It is hardly surprising that laymen do not understand all the legal aspects of homestead when many lawyers fail to grasp all the ramifications of 'Our Legal Chameleon'. 1
5. That Kathleen LaGasse did not file a declaration of intent to make the 40th Street property her homestead prior to the attempted levy is immaterial. F.S. § 222.02 F.S.A. providing for designation of homestead after levy specifically says that such designation may be made 'at any time before the day appointed for the sale thereof, * * *'.
6. Last but not least, the overshadowing bugaboo seemingly troubling the parties is whether the recorded judgment lien attached to Kathleen's remainder interest, after her father's death and while her mother was still living. This is wholly immaterial. The Court is not dealing with lien of a judgment against a prospective title.
All of which gets us down to the real crux of the case, which is whether or not real property which has been homesteaded by the head of a family under Article X, §§ 1 to 6, F.S.A., and statutes enacted pursuant thereto, is amenable to forced levy and sale to satisfy a judgment and where the property had no connection with the debt or obligation upon which the judgment was originally procured.
After Kathleen's mother died, the judgment creditor Aetna procured execution to be levied against the 40th Street home property wherein Kathleen had been living as the head of a family for several months. Kathleen thereupon declared her homestead rights to be exempt from forced sale by filing the requisite statutory affidavit with the sheriff. These are the simple basic facts which the Court has before it.
And we do not have to pause to speculate upon what would have happened if the judgment had been levied on Kathleen's remainder interest in the property before the mother died or even before the father died. Here we have another simple fact: it just didn't happen. So the Court is faced with a 'condition and not a theory', the condition being that no prerequisite levy...
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