Matthews v. Mccain

• Decision Date: 23 October 1936
• Citation: 170 So. 323,125 Fla. 840
• Parties: MATTHEWS et al. v. McCAIN et al.
• Court: Florida Supreme Court

170 So. 323

125 Fla. 840

MATTHEWS et al. v. McCAIN et al.

Florida Supreme Court

October 23, 1936

En Banc.

Suit in equity by Jewel Weldon McCain, joined by her husband and next friend, G. F. McCain, against Charles J. Matthews and another. From an order denying a motion to dismiss the bill of complaint, defendants appeal.

Affirmed.

DAVIS and BUFORD, JJ., dissenting. Appeal from Circuit Court, Orange County; Frank A. Smith, judge.

COUNSEL

George P. Garrett, of Orlando, for appellants.

H. N Roth, of Orlando, for appellees.

OPINION

BROWN Justice.

This is an appeal from an order denying a motion to dismiss the bill of complaint.

Jewel Weldon McCain, joined by her husband and next friend, G. F McCain, filed her bill of complaint in the circuit court of Orange county, Fla., against Harry Hand as sheriff of Orange county, and Charles J. Matthews of Philadelphia, Pa., praying that Harry Hand as sheriff of Orange county be required to return to complainant her separate statutory property levied upon by said defendant in the common-law action mentioned in the bill of complaint; and that Charles J. Matthews, his agents, attorneys, and employees, be enjoined from interfering with the use and enjoyment by complainant of her separate statutory property.

The bill of complaint alleged substantially that complainant was on June 9, 1932, a married woman, and has been at all times since, being married to G. F. McCain; that on or about June 9, 1932, Charles J. Matthews purported to execute to complainant and her husband, G. F. McCain, a five-year lease on certain real property in Orange county; that in and by said lease complainant and her husband, G. F. McCaim, held said leasehold estate as tenants by the entireties; that on December 5, 1934, Harry Hand, as sheriff of Orange county, levied upon and took into his possession certain personal property, the separate statutory property of complainant under authority of a distress warrant issued by the circuit court of Orange county in a common-law action pending therein in which Charles J. Matthews was plaintiff and complainant, Jewel Weldon McCain, and her husband, G. F. McCain, were defendants; that said property was, on June 9, 1932, and has been ever since that date, the separate statutory property of complainant; that complainant is not the tenant or lessee of the premises described in said lease, nor is she a sublessee or assignee of the lessee, and that Harry Hand, as sheriff of Orange county, acted without authority of law in levying upon and taking into his possession complainant's separate statutory property; that complainant is without funds, and is unable to procure a bond in double the amount of the goods claimed by her, in the common-law action as is permitted under section 5429(3565) C.G.L.; and that she is without an adequate remedy at law and is entitled to maintain this proceeding in equity under section 4 of the Declaration of Rights of the Florida Constitution.

The defendants filed their joint and several motion to dismiss the bill of complaint. The substance of the grounds of the motion are: That the bill is without equity; that the bill discloses complainant has a plain, adequate, and complete remedy at law; that the lease creates a several liability on the part of Jewel Weldon McCain which entitled Charles J. Matthews to distress her separate statutory property for past-due rent; that the lease refutes the allegation that Jewel Weldon McCain is not a tenant or lessee of the premises; that Jewel Weldon McCain is unable to make bond as provided by statute does not mean that she does not have a plain, adequate, and complete remedy at law; that under section 5420, C.G.L., Charles J. Matthews has a lien upon the property he has distressed; that coverture is no defense to enforcement of the landlord's lien under section 5420, C.G.L.; that the landlord's right to distress proceedings is not enforced in equity under section 2 of article 11 of the Constitution, but is derived from the common law which antedates the Constitution of 1885 and even Florida's admission into the Union.

The court denied the motion to dismiss the bill of complaint and allowed the defendants until the following rule day in which to file their answer to the bill.

From the order denying the motion to dismiss the bill, the defendants took an appeal.

The sole question contested on this appeal is whether when a sheriff levies a distress warrant upon personal property located on the leased premises in order to enforce a landlord's claim for distress for rent due under a written lease executed by and to a wife and her husband, and it develops that the property levied on is the separate statutory property of the wife, is the property distrainable? All other questions are abandoned by the parties litigant. But in support of its main position appellees contend that the lease created an estate by the entireties.

The lease contained the following description of the parties:

'This indenture, made this 9th day of June A. D. 1932, by and between Charles J. Matthews of the City of Philadelphia, State of Pennsylvania, hereinafter called first party, and Jewel Weldon McCain, joined by her husband, G. F. McCain of Orlando, Orange County, Florida, hereinafter called second party.'

An estate bn the entireties can be created in property capable of being held as an estate by the entireties where a conveyance of transfer is made to husband and wife without expressly specifying how they are to take. If a man and woman are husband and wife, a conveyance to them, where no contrary intent is expressed or indicated by the language used, regarding the estate conveyed, vests in them an estate by the entireties. 13 R.C.L. 1111; 30 C.J. 558-559.

At common law, an estate by the entireties could exist in an estate in fee, in tail, for life, for years, or other chattel real. 13 R.C.L. 1105, § 128; 18 Am.Dec. 382, note; 30 L.R.A. 317-319, note; 2 Preston on Abstracts of Title, 39; Dowing v. Seymour, Cro.Eliz. 911; Wiscot's Case, 76 Eng.Rep. (Full Reprint) 555. Estates by the entireties are recognized in Florida as they existed at common law except as modified by statute or constitutional provisions. Ferris-Lee Lumber Co. v. Fulghum, 98 Fla. 171, 123 So. 697; English v. English, 66 Fla. 427, 63 So. 822; Bailey v. Smith, 89 Fla. 303, 103 So. 833; Anderson v. Trueman, 100 Fla. 727, 130 So. 12. A leasehold in land is a chatteal. 2 Blackstone's Commentaries, 386; Davis v. Investment Land Co., 296 Pa. 449, 146 A. 119, 121. Estates by the entireties have not been abolished in Florida in chattels real, so they exist as at common law.

The lease in question was made for a term of five years. It was a chattel real, and was an interest in which an estate by the entireties could exist.

Whether an estate by the entireties exists as the result of the acquisition of property by and in the names of both husband and wife must be determined by a consideration of the nature and terms of the transaction as portraying the intent of the parties and of the rules of law applicable thereto. Bailey v. Smith, 89 Fla. 303, 103 So. 833.

The words of conveyance of the leasehold are: 'Jewel Weldon McCain, joined by her husband, G. F. McCain.' The lease contract provided that the property might be used for a tearoom, café, or other business purpose, but the bill does not allege to what use the property was put. The lease is signed by both the wife and the husband, the wife's signature appearing before that of the husband at the end of the lease. Because the wife's name appears before that of the husband in the clause describing the parties instead of afterwards, because the words 'joined by her husband' instead of 'and her husband' are used to connect the names of Jewel Weldon McCain with G. F. McCain, and because the wife's signature appears before that of her husband at the end of the lease, it is at least doubtful whether the parties intended thereby to create an estate by the entireties. Any one of these things standing alone might not have been sufficient to show that the parties did not intend that the husband and wife should take as an estate by the entireties; but the sum total of all of them tend strongly to indicate that the parties did not intend to create an estate by the entireties; and it further indicates that the wife probably was the controlling influence in contracting for the lease of the property and that the husband was joined because this was deemed necessary to the making of a valid contract. But we do not deem it essential to the decision on this appeal to determine whether this instrument created an estate by the entireties or not. In any event, as will later appear, the wife's property was not subject to distraint under the facts alleged.

At common law, the wife's existence was merged in that of her husband, and it is from this idea of unity that most of the so-called disabilities of married women have arisen. Tresher v. McElroy, 90 Fla. 372, 106 So. 79; De Graum Aymar & Co. v. Jones, 23 Fla. 83, 6 So 925. But the common-law rule has been modified in this state by statutes, among them mainly being sections 5866-5872, C.G.L., and also by constitutional provisions, article 11, sections 1 to 3 of the Constitution, the first section of which is embraced in section 5866, C.G.L. Tresher v. VcElroy, 90 Fla. 372, 106 So. 79. Article 11, § 2, of the Constitution removes from married women, under carefully limited restrictions, the common-law disability of coverture in the cases therein specifically enumerated, and enables her in such cases to assume certain obligations that can be charged in equity upon, and enforced out of, her separate property. Craven v. Hartley, 102 Fla. 282, 135 So. 899; Micou v. McDonald, 55...