Murphy v. Farquhar

• Decision Date: 26 January 1897
• Citation: 22 So. 681,39 Fla. 350
• Parties: MURPHY et ux. v. FARQUHAR et ux.
• Court: Florida Supreme Court

22 So. 681

39 Fla. 350

MURPHY et ux. v. FARQUHAR et ux.

Florida Supreme Court

January 26, 1897

Appeal from circuit court, Hillsborough county; George B. Sparkman Judge.

Bill by Arthur A. Farquhar and Harriet S., his wife, against J Mortimer Murphy and Jane S. Murphy, his wife. Judgment for plaintiffs, and defendants appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. Under the homestead provisions of the constitution of Florida, an attempted transfer of the legal title by the husband to his wife of his homestead does not and cannot give to any judgment against him any other, further, or greater lien or right in or to such homestead than it had before such attempted transfer of the legal title was made, if the right to the exemption of the homestead has not otherwise been forfeited. If the exempted property continues in good faith to be the homestead or place of actual permanent abode of the husband and his family, without any permanent abandonment thereof, then his judgment creditors have no such lien upon or interest therein as will give them a right to question the validity of an attempted transfer of the legal title thereto by the husband to the wife.

2. While the law is well settled that a temporary absence in search of health or pleasure, or on another place for purposes of business, will not deprive the homestead claimant of his right, unless it be apparent that there was a design of permanent abandonment, yet it is equally well settled that a permanent abandonment of the homestead as a bona fide home and place of permanent abode strips it of its homestead character, and deprives the claimant of the right to exempt it from sale for his debts.

COUNSEL

Macfarlane & Pettingill, for appellants.

G. A Hanson, for appellees.

OPINION

TAYLOR C.J.

The appellees, Arthur A. Farquhar and Harriet S., his wife, filed their bill in equity on April 16, 1891, in the circuit court of Hillsborough county, against the appellants, J. Mortimer Murphy and Jane S. Murphy, his wife, alleging, in substance, that they were the owners of lot 5 of section 2 in township 27 S., in range 15 E., in the county of Hillsborough, Fla., containing less than 100 acres; that they were in actual possession and occupancy thereof, making it their home and place of permanent abode; that the same was vested in the said Arthur A. by title in fee, but on the 28th day of January, 1883, he made a deed of conveyance of the same to his said wife, Harriet S., the same having been set apart and dedicated by them as a homestead for themselves and their heirs, under the constitution and laws of Florida, prior to the making of said deed; that they are advised that said deed is not in accordance with law, and is of no legal force, but, be that as it may show, that said land was set apart and declared to be the homestead of orators by an instrument in writing filed for record with the county judge of said county, and that, while they are advised that such filing and record of their claim of homestead in said land was not necessary under the constitution of 1885, yet they made the sarme in good faith, out of abundant caution, the same being then their only home and place of residence; that on the 31st day of March, 1887, one W. G. Farquhar, who was then alive, obtained a judgment in the circuit court of Hillsborough county for the sum of $1,500 against him, the said Arthur A., and one E. L. Tessier; that said judgment was not for the purchase money of said land, nor for any labor or material furnished for its improvement, nor on any account that could create a special lien under the laws; that notwithstanding their homestead rights in said land, and against their protests, the sheriff of said county levied upon said homestead under such judgment, and sold it thereunder to the said W. G. Farquhar, on July 4, 1887, and executed a deed to him therefor; that about the 4th of November, 1887, the said W. G. Farquhar died, intestate, and that on the 7th of November, 1887, the defendant Jane S. Murphy applied for, and obtained from the county judge of said county, letters of administration of his estate (the bill questions the legality of this grant of administration to Jane S. Murphy, on the ground of her coverture and inability to give bond as administrator without her husband being joined in the administration with her); that the said Jane S. Murphy, as such administratrix, applied to the county court of said county for, and obtained, an order for the sale of said lot of land, as being the property of said estate of W. G. Farquhar, deceased; that a commissioner was appointed, and ordered to sell said land, by the county court, on her application as administratrix; that said commissioner sold the same against their protests made at the sale, and the same was bid off at said commissioner's sale by the defendant J. Mortimer Murphy, to whom the said conmmissioner has made a deed for the same; that said acts and doings cloud their title to said homestead, and that, though they are still in the possession and occupancy of their said homestead, they might, by accident, be deprived of the evidence necessary to establish their right therein, and that delay in removing said clouds on their title may work irreparable injury. The prayers of the bill are that said levy and sale by the sheriff under said judgment, and the deed made by him to W. G. Farquhar, may be adjudged to be wholly null and void, and set aside and canceled, and that said proceeding in the county court by Jane S. Murphy, as administratrix of W. G. Farquhar, for the sale thereof, and the deed made by the commissioner in pursuance thereof, may be likewise adjudged to be null and void, and set aside and canceled, as being illegal clouds on their title to said land, and that the homestead rights of orators in said land may be declared, upheld, and protected. The bill contains also the usual prayers for subpoena and general relief.

The defendants demurred to the bill upon the grounds: (1) Because said bill is vague, uncertain, and contradictory, in that it alleges, first, that both of the complainants are the owners of the land therein described, while it is subsequently shown therein that it is not owned by both of them. (2) Because it is shown by said bill that the complainant Arthur A. Farquhar, by his deed to the complainant Harriet S. Farquhar, attempted to convey said land, and is therefore estopped to claim the same as his homestead, while the complainant Harriet S. Farquhar cannot set up a claim of homestead under the constitution and laws of Florida. (3) Because the allegations of said bill show the conveyance of said land by Arthur A. to Harriet S. to be void, and, the complaint Arthur A. Farquhar being estopped to claim a homestead in same, the levy under the judgment of W. G. Farquhar was a valid lien upon said property, and said sale thereunder devested the title of the complainants. The other grounds of the demurrer need not be stated. This demurrer was overruled, and the defendants answered the bill, in substance, as follows: They deny that the complainants are the owners of the land as alleged, but allege that the levy upon and sale thereof under the judgment in favor of W. G. Farquhar was in all respects valid and legal, and that since the conveyance thereof by the sheriff, pursuant to said sale, neither of the complainants have been the owners thereof, nor had any title whatever to the same. They deny that the complainants, or either of them, are in actual or legal possession of said land, or any part thereof, or that they were so in possession at the time of the filing of their bill. They admit that A. A. Farquhar, on or about January 28, 1883, made a conveyance of said land directly to his wife, Harriet S., but allege that said deed was void and of no legal force, as admitted in said bill. They deny that the complainants had set apart and dedicated said land as their homestead prior to the execution of such deed from Arthur A. to Harriet S. The levy and sale by the sheriff under the judgment in favor of W. G. Farquhar, and the making of the deed by the sheriff to W. G. Farquhar, pursuant to said sale, is admitted. They deny that, at the time the complainants filed the paper declaring said land to be their homestead, they were occupying said property in good faith, as their permanent home and place of abode. They admit the death of W. G. Farquhar, intestate, and the administration on his estate by Jane S. Murphy, and deny that she is not in all respects the legally constituted administratrix of the estate of said W. G. Farquhar. They admit the sale of the said land by a commissioner by order of the county court, on the application of Jane S. Murphy, as administratrix, and the purchase thereof at said commissioner's sale by the defendant J. Mortimer Murphy. Replication to this answer was filed, and the cause referred to a master to take testimony.

A voluminous amount of testimony was taken and reported to the court, chiefly directed to the issue as to whether the complainants had continuously resided upon the land as their bona fide home and place of permanent abode, or whether they had abandoned their residence upon it, and made their actual home and residence elsewhere. Final hearing was had upon the pleadings and evidence reported, resulting in a final decree in favor of the complainants, in conformity to the prayers of their bill,...