Moorhead v. Yongue

• Decision Date: 27 September 1938
• Citation: 134 Fla. 135,183 So. 804
• Parties: MOORHEAD et al. v. YONGUE.
• Court: Florida Supreme Court

183 So. 804

134 Fla. 135

MOORHEAD et al. v. YONGUE.

Florida Supreme Court

September 27, 1938

Rehearing Denied Oct. 31, 1938.

Suit by W. W. Yongue against Gordon Moorhead, etc., and others to enjoin execution sale of plaintiff's realty. Decree for plaintiff, and defendants appeal.

Reversed and remanded, with directions.

CHAPMAN J., and ELLIS, C.J., dissenting. Appeal from Circuit Court, Marion County; J. C. B. Koonce, judge.

COUNSEL

H. M Hampton, of Ocala, for appellants.

C. A Savage, Jr., of Ocala, for appellee.

OPINION

BUFORD Justice.

W. W. Yongue, a single man, acquired title to certain property in 1932 at which time there were outstanding against him certain judgments. Afterwards execution was levied on the real estate. Yongue, on September 25th, 1936, filed bill to enjoin sale, claiming the property as homestead and, therefore, exempt from forced sale.

McNab answered the bill and in paragraph 1 and 2 thereof alleged:

'Defendant denies that the property involved herein constitutes or has ever constituted the homestead of the plaintiff, and says that the same is subject to forced sale under the executions and judgments referred to.

'Defendant admits that the plaintiff undertook to have his property set off and to have his homestead designated, but specifically denies that the same amounted to such designation, and charges that the same was a fraud upon the court and upon the rights of this defendant, because the said property never constituted the plaintiff's homestead, and plaintiff was not at said time a married man and has never had a homestead in Marion County, and that the charge that the same is a homestead is a subterfuge to try to avoid the payment of his just debts.

'Defendant therefore denies that the same would constitute a cloud on his title, but charges that a sale under said judgments will constitute a sale of the said property and vest in the purchaser the legal title thereto.'

In the final decree the Chancellor said:

'That continously since plaintiff acquired his interest in said property, hereinafter described, and continuously for the last past ten or twelve years, that plaintiff, W. W. Yongue, has been the head of a family, consisting of his mother and father, prior to his marriage, and his mother, father and wife since his marriage, until his mother's death, and since her death consisting of his wife and father; that they were dependent on him for support and he did support them, or some of them, continuously during said period of time, and that the judgments hereinafter designated and described have never been a lien on the real estate and homestead property of plaintiff, hereinafter described;'

The record shows that Yongue was married on August 1st, 1936.

The record shows the following testimony by Yongue, upon which Yongue relied as basis of his claim of homestead exemption against forced sale:

'Q. Mr. Yongue, your deed filed in evidence as Exhibit No. 1 is dated the 26th of February, 1932, and you married August 1, 1936, prior to your marriage, did you have anyone depending upon you for support? A. Yes.

'Q. You have previously testified that you supported your mother and father for the last ten years, up until the date of your mother's death and since that time you have supported your father, please state briefly what you did in the way of supporting your mother and father, say from the first of January, 1932, and up until the date of your marriage? A. I supplied them with groceries at their house and kept up the place they lived on.

'Q. Were you their sole means of support? A. Yes.

'Q. Did anyone contribute toward their support but you? A. No.

'Q. Where did you buy the groceries for them usually? A. Scott's Store.

'Q. That at Ockalawaha, Florida? A. Ockalawaha, Florida.

'Q. They were both solely dependent upon you for support, and you were their sole means of support all that time? A. Yes. I paid all their doctor bills too.

'Q. Is your father able to attend this hearing today? A. He isn't, he is in a very bad condition.

'Q. You mean he is sick physically and unable to attend? A. Yes.

'Q. Are you still supporting him? A. Yes.

'Re-cross examination by H. Hampton, Attorney for Defendants:

'Q. When did your mother die? A. March 18, of this year.

'Q. Your father still living? A. Yes.

'Q. Where is he living? A. On mother's place.

'Q. On your mother's place? A. Yes.

'Q. Where did your mother live before she died? A. On her own place.

'Q. In other words, they lived on the place at Ockalawaha? A. Yes.

'Q. Did they ever live on the land involved in this suit? A. No.'

The evidence failed to establish the homestead character of the property prior to Yongue's marriage. The judgments constituted liens on the property before it acquired the status of a homestead and, therefore, it was not exempt from sale under execution based on such judgments. Pasco v. Harley et al., 73 Fla. 819, 75 So. 30; Lyon v. Arnold, 5 Cir., 46 F.2d 451.

The record shows that Yongue's father and mother never resided on the property involved, but lived in a separate home belonging to his mother. That house belonging to Yongue's mother was the homestead of the parents of Yongue. Yongue resided on the property involved here before he purchased the one-half interest in it and continued to reside thereon until the present time. But the showing is insufficient to show that he was the head of a family entitled to claim this property as homestead exemption until he married in 1936.

While the record shows that Yongue supported his parents, it fails to show that he was the head of a family. He did not live with his parents. They had the home where they lived and he established his home away from his parents on the land involved.

In the case of Johns v. Bowden et al., 68 Fla. 32, 66 So. 155, this Court defined the conditions necessary to constitute one the head of a family, which definition was approved in Whidden v. Abbott et al., 124 Fla. 293, 168 So. 253, as follows [page 254]:

'To constitute a 'head of a family' there must be at least two persons who live together in the relation of one family, and one of them must be 'the head' of that 'family.' When the natural relation of husband and wife or parent and child, or that of being in loco parentis, does not exist, the relation should be one in which an established and continuing personal authority, responsibility, and obligation actually rests upon one as 'the head of a family' for the welfare of the others who, in law, should, or in fact, do, recognize and observe a family relation to the one as 'the head of a family."

It follows that the decree must be reversed and the cause remanded for further proceedings.

So ordered.

Reversed.

WHITFIELD, TERRELL, and BROWN, JJ., concur.

ELLIS C.J., and CHAPMAN, J., dissent.

DISSENTING

CHAPMAN, Justice (dissenting).

This cause is here in appeal from a final decree dated January 5, 1938, made and entered by the Circuit Court of Marion County, Florida. The material portions of the final decree are: First, the decree permanently enjoins or restrains the Sheriff of Marion County, Florida, from selling at Sheriff's sale certain described lands claimed as a homestead under execution on two judgments owned by George B. McNab. One judgment is in favor of the plaintiff in the suit of Franklin Paint Company v. W. W. Yongue, trading as Yongue's Poultry Farm, and obtained on February 4, 1926; the second judgment in favor of the plaintiff in the suit of Gulf Fertilizer Company v. W. W. Yongue, obtained on September 1, 1927; each of these judgments being recorded among the public records of Marion County, Florida. The record is silent as to assignments of the aforesaid judgments to George B. McNab, defendant below. Second, the judgment recorded in the Minutes of the Circuit Court, Book 'W', page 319, being the case of Franklin Paint Company v. W. W. Yongue, 'is hereby cancelled and satisfied of record and the Clerk shall note the cancellation thereof on the margin of the record where judgment is recorded.'

The first question for determination is whether the right to homestead exemption is superior to or subject to the lien impressed upon the property by the rendition of the judgment and the levy of the execution issued thereon before the acquisition of the right to homestead exemption in the property. Second: from the evidence adduced, was the lower court justified in finding or decreeing that the said judgments, supra, or either of them, had been paid? The parties to this suit will be referred to in this opinion as they appeared in the lower court as plaintiff and defendant.

Consideration will be given to the questions here for determination in reverse order in which they are stated supra. 'From the evidence adduced, was the lower court justified in finding or decreeing that the judgments, supra, or either of them, had been paid?' The plaintiff acquired deed to the homestead on February 26, 1932, and was on June 25, 1935, by the Clerk of the Circuit Court of Marion County recorded in Deed Book No. 224 at Page 542. The plaintiff was 39 years of age and on August 1, 1936, married Willa K. Funnell at Inverness, Florida. The plaintiff lived all of his life near Ockalawaha in Marion County, Florida, and the land is located in the same county. The record, on page 20, shows: Questions by Mr. Savage:

'Q. Mr. Yongue, there is a judgment of record in Marion County in the case of Franklin Paint Company versus W. W. Yongue, recorded in Minutes of Circuit Court 'A' page 319, judgment having been rendered in the Circuit Court of Marion County, Florida, on February 3, 1926. Please state whether you are the W. W. Yongue named in that judgment? A. Yes.

'Q. Have you ever paid that judgment?...