Mullan v. Bank of Pasco County

• Court: United States State Supreme Court of Florida
• Writing for the Court: DAVIS, C. PER CURIAM.
• Citation: 101 Fla. 1097,133 So. 323
• Parties: MULLAN et al. v. BANK OF PASCO COUNTY. WILLIAMS et al. v. SAME.
• Decision Date: 11 March 1931

133 So. 323

101 Fla. 1097

MULLAN et al.
v.
BANK OF PASCO COUNTY.

WILLIAMS et al.
v.
SAME.

Florida Supreme Court

March 11, 1931

Commissioners' Decision.

Suit by the Bank of Pasco County against W. J. Mullan and others. From the decree rendered, defendants W. J. Mullan and H. N. McMasters appeal, and defendants Anita Williams and husband and Lucile H. Ellis and husband also appeal.

Reversed, and cause remanded with directions.

Syllabus by the Court.

SYLLABUS

The head of a family residing in this state with wife or children may not devise his homestead.

An election on the part of a widow to take a child's part in the estate of her deceased husband must be done by some method which does not leave the election uncertain or subject to dispute, and must be done within one year from the date letters of administration or executorship are issued. When once exercised, the election cannot be recalled and dower set aside. If she fails to act she is bound by her nonaction.

Where will disposing of homestead is void as to the homestead and widow fails to elect to take a child's part in lieu of dower within twelve months from the probating of the will, she is confined to her right of dower.

Under section 5497(3633), Compiled General Laws of Florida 1927, the widow may retain full possession of the dwelling house in which her husband most usually dwelt next before his death, together with outhouses, offices, or improvements thereto belonging, free from molestation or rent, until she shall have her dower assigned.

Widow is under no duty to proceed for assignment or allotment of dower in homestead of deceased husband under the Constitution and statutes of Florida, but may await action of husband's heirs or personal representatives.

While courts of equity fully recognize the rule that at law the widow's right of dower, previous to an assignment, is not such an interest as can be made the subject of a conveyance to a stranger by any of the ordinary modes of conveying freehold estates, so as to vest the legal interest in the grantee, yet in those courts, if the widow be entitled to an immediate assignment of dower, the want of a mere formal assignment is not considered material, and her contract concerning her interest may be of such character that it will be enforced.

A deed by a widow which purports to convey property that belonged to her husband prior to his death (there being children and no election to take a child's part in lieu of dower) merely assigns her right of action for dower and confers upon her grantee or his assigns all the rights of the widow to have her dower assigned.

A widow whose dower has never been assigned to her cannot by merely remaining in possession of property that belonged to her deceased husband, acquire title by adverse possession, as against the heirs.

The possession of a parent of his child's land will not be deemed adverse to the child. Such possession, subject to certain general exceptions, will be presumed to be permissive and not adverse.

Where the possession is originally taken and held under the true owner, a clear, positive, and continued disclaimer and disavowal of title, and an assertion of an adverse right brought home to the true owner, are indispensable before any foundation can be laid for the operation of the statute of limitations.

A deed from a widow purporting to convey the fee to lands that belonged to her deceased husband prior to his death, and in which she had a dower which had not been assigned to her, is sufficient to constitute color of title in a stranger to the title and he may not be estopped from taking and holding possession of the land in hostility to the heirs.

The mere execution and delivery and recording of a warranty deed is not sufficient to establish title by adverse possession. There should be an entry thereunder to the exclusion of the rights of all others.

Every presumption is in favor of a possession in subordination to the title of the true owner, and an adverse possession as against such owner must be established by clear and positive proof.

For possession by the widow of lands that belonged to her deceased husband prior to his death and in which her dower had not been assigned to her, to be adverse to the children, there must be some open assertion of a hostile claim of title, other than mere possession, and notice of such claim must be brought home to such children.

The general rule is that neither laches, estoppel, nor the statute of limitations will run against a remainderman prior to the termination of the life tenancy. This rule is, however, predicated on an uninterrupted continuation of the conduct of the life tenant consistent with his duty as such to the remainderman.

The rule may not apply where it is shown that the remainderman had actual knowledge of the repudiation or abandonment by the life tenant of his status as such, and of the holding by him of the property under a different and adverse right, or where the life tenant in good faith and to the knowledge of the remainderman claims title, not as a life tenant, but through some other source, or where there has been ouster and disseisin of the life tenant or by one claiming through or under him, and this under claim of right or color of title followed by adverse possession for the statutory period, or when there is some special independent equity in favor of the purchaser who claims under a conveyance from the life tenant.

A widow's right of dower is a fixed right or interest, vested in her as widow, and though not regarded as an interest in land, but rather as a chose in action, it may be mortgaged, and upon foreclosure be assigned by a master for a consideration.

A mortgage being a mere incident to the indebtedness, an assignee for value before maturity of a negotiable promissory note secured by mortgage is entitled to the same privileges and immunity with respect to an action to foreclose the mortgage, to which he would be entitled in an action on the note. He takes good title and is free from all those defenses, which would not be valid against the holder in due course of a negotiable instrument.

Absence or failure of consideration is a matter of defense as against any person not a holder in due course; and a partial failure of consideration is a defense pro tanto whether the failure is an ascertained and liquidated amount or otherwise.

The established rule is that knowledge acquired by the officers or agents of a corporation, while not acting for the corporation, but while acting for themselves, is not imputable to the corporation. [133 So. 325]

[101 Fla. 1100] Appeal from Circuit Court, Pasco County; O. L. Dayton, judge.

COUNSEL

H. R. Williams, of St. Petersburg, R. B. Sturkie, of Dade City, and T. B. Ellis, Jr., of Fort Pierce, for appellants.

Arthur L. Auvil, of Dade City, for appellee.

OPINION

DAVIS, C.

This suit was brought for the foreclosure of a mortgage given by W. J. Mullan and H. N. McMasters to Josephine B. Hennington and assigned by her to the Bank of Pasco County. During the lifetime of one L. F. Hennington, he and his wife, Josephine B. Hennington, with certain of their children, lived a house on certain lots in the town of Zephyrhills, Fla., said lots comprising less than one-half an acre of land. The upper part of the house was used by them as a dwelling place and the lower part was used for business purposes. L. F. Hennington died on January 13, 1918, leaving a will by which he attempted to devise to his wife the said property. The will was probated, and the widow, together with the children, one of whom was a minor, continued to reside upon said property, and the widow continued to operate the business [101 Fla. 1101] on the lower floor of said house; she having assisted in running the business while her husband was living. On March 26, 1920, for the consideration of $1 [133 So. 326] and other valuable considerations, the widow by warranty deed attempted to convey the said property to one A. J. Roberts, who at that time was a roomer in her house, and on the 25th day of June, 1920, by his warranty deed, Roberts reconveyed the property to the said Josephine B. Hennington. While the bill of complaint alleges that at the time of the execution of the deeds, respectively, Mrs. Hennington delivered possession of the property to Roberts and that Roberts redelivered such possession to Mrs. Hennington, it is apparent from the transcript that there had been no actual change of possession. Mrs. Hennington continued as theretofore to reside upon the property. Roberts was 'in the house at the time as a paying guest.' With the exception of $1 consideration recited in the deed, what was given by Roberts for a deed or how it was paid is not disclosed. It does appear that when Roberts reconveyed the property to Mrs. Hennington, he had put a new roof on the building, which, as she stated, he gave to her and that no money was refunded by her.

On December 1, 1925, Mrs. Hennington by her warranty deed attempted to convey the property to W. J. Mullan and H. N. McMasters and received therefor a cash payment of $8,000 and also two certain notes each in the sum of $6,000 secured by a mortgage upon the property. In addition thereto, the grantees assumed the payment of an existing mortgage upon the property, given to secure the payment of $5,000. On August 6, 1926, the $12,000 mortgage was assigned by Mrs. Hennington to the complainant, the the Bank of Pasco County, in exchange for 'open notes' that had been given by Mrs. Hennington for amounts [101 Fla. 1102] she owed to the bank. On November 26, 1927, the bank filed its bill to foreclose the mortgage making Mullan and McMasters and the widow Josephine B. Hennington and the children (five) of L. F. Hennington parties defendant. One of the children, Joy Hennington, was a minor. In the bill it is alleged:

'That the said Josephine

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