O'neal v. Miller
| Citation | 196 So. 478,143 Fla. 171 |
| Court | United States State Supreme Court of Florida |
| Decision Date | 24 May 1940 |
| Parties | O'NEAL v. MILLER et al. |
En Banc.
Suit in equity by John H. O'Neal against P. A. Miller, as executor of the estate of Herman Devoe, deceased, and others to foreclose a mortgage. From a decree of dismissal complainant appeals.
Reversed.
BROWN and BUFORD, JJ., dissenting in part. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.
Roger Edward Davis, of Miami, for appellant.
Morrow & Mayes, of Miami, for appellee.
In this case the husband, the head of the family, was residing with his wife and minor unmarried daughter on his homestead in Florida, when the wife and minor unmarried daughter went to another state. They did not return to Florida for several years and until after the death of the husband. The marital relation continued and the husband resided on the homestead until his death. The wife did not acquire a permanent home or domicile separate from that of her husband; and it was her privilege, if not her duty, to return to the husband on the homestead at any time during his life, even if in law it was not also the privilege or duty of the minor unmarried daughter to return to her father's home where he continued to reside till his death.
Under such conditions and circumstances there was no abandonment of the homestead of the husband in Florida on which he resided with his wife and unmarried daughter as his family, before the wife and daughter went to another State and on which homestead the husband continued to reside until his death, the marital relation continuing and neither the wife nor the minor unmarried daughter having acquired a home or a domicile separate from that of the husband and father.
The essential facts in each case control the decision. The facts in this case are stated in the opinion of Mr. Justice BROWN.
In Herrin v. Brown, 44 Fla. 782, 33 So. 522, 103 Am.St.Rep. 182, all the children were grown and had permanently established homes away from the father's homestead; and when the wife died, though the husband continued to live alone on the home place, it was no longer the homestead of the husband because he had no wife and no one lived with him as a member of his family.
In Jordan v. Jordan, 100 Fla. 1586, 132 So. 466, the husband and wife by agreement and conduct abandoned the marital relation and the homestead exemption rights, the children having homes of their own.
In Lanier v. Lanier, 95 Fla. 522, 116 So. 867, the homestead property was held to have been abandoned by husband and wife.
In Johns v. Bowden, 68 Fla. 32, 66 So. 155, the children had permanently moved from the father's homestead and the mother had died, but a granddaughter lived with the surviving husband and father as a member of his family.
In this case the wife and minor daughter left the husband's homestead in Florida because of his cruelty; and there was no divorce or agreed separation of the husband and wife and no intended abandonment of the homestead by the wife when she and the minor daughter left the home because of the husband's cruelty, and no intention thereafter to abandon the homestead is shown or can be inferred from anything in the record brought here. The marital relation continued and the wife and minor daughter had the privilege of returning to the home where the father continued to live until his death. When the husband died he was a married man living on his homestead, and he and his wife had not abandoned or alienated the homestead property and had not by agreement abandoned the marital relation. See Nelson v. Hainlin, 89 Fla. 356, 104 So. 589.
The father's mortgage executed in 1927 was good against him as to the property other than the homestead rights in the real estate known as 'the South 30 feet of east half of lot 9, block 37, according to the Plat of Waddell's Addition to the Town of Miami, * * * on which is located a house known as 1512 N.W. First Court, Miami, Florida.' The widow having died pending this suit, there are no dower rights. The homestead passed to the surviving daughter.
Decree reversed for appropriate proceedings.
Herman Devoe, now deceased, owned two lots in the city of Miami, Florida, where he and his wife resided until April 26, 1927. On that date, the wife, Rosa, deserted her husband and took the now sole surviving one of three children, then a minor, with her to New York to live. Rosa gave as her reason for leaving 'cruel treatment--cruelty'.
On December 9, 1927, Herman Devoe executed a mortgage covering the property to Isaac Little securing the payment of ten promissory notes. Through subsequent assignments the notes and mortgage, purporting to have been executed also by Rosa Devoe, came into the hands of John H. O'Neal.
The two lots are 60×100 feet each and on them is the former home of Herman Devoe, four other small residence houses, one a 'duplex', and a small building constructed for a fish store. All the buildings other than the home were constructed and used by Devoe for rental purposes. Rosa Devoe testified that he had no other means of livelihood, but as she was in New York for seven years before Herman's death, and had been gone for seven months when the mortgage was executed, her testimony on this point is of little weight. There was some further testimony tending to corroborate hers, but it was rather vague and related mainly to the last few years of Herman's life. The houses were all occupied at the time of hearing, but the store had for some time been vacant. During the three years after the death of Herman Devoe in 1934 and before the return of Rosa Devoe, the property was managed by the executor of the estate of Herman. When Rosa, after ten years absence in New York, returned to Miami in December, 1937, she moved into and occupied the house that had been her former husband's home, after this suit was begun.
O'Neal, appellant here, on April 22, 1937, filed a bill to foreclose the mortgage against the executor of the estate of Herman Devoe, Rosa Devoe, deceased's wife, and the minor daughter, Cloefield, who has reached her majority since the institution of this suit, and other collateral heirs. Answer was filed which denied the execution of the mortgage and notes by Rosa, and further alleged that the property was the homestead property of Herman Devoe and that the mortgage had not been executed in accordance with the constitutional provisions for such execution. A special master was appointed, testimony was taken, and in his report the Special Master found that that part of the property on which Herman resided was a homestead and that the mortgage not being executed according to the constitutional provisions for executing mortgages on homesteads, was not binding as to it; that the remainder of the property, not being homestead, the mortgage constituted a valid lien thereon, subject to the wife's right of dower therein.
Both parties filed exceptions to the master's report, those of the defendant Rosa alleging that the master erred in finding that the homestead only embraced that part of the property on which was located the actual home of Devoe being sustained, and the bill of complaint was dismissed by final order of the court. Plaintiff appeals, asking us to determine what part of the property, if any, is homestead property. Rosa Devoe died subsequent to the entry of the final decree. Her daughter, Cloefield, was appointed administratrix ad litem of her mother's estate.
In prior adjudications on the law of homesteads, this court has handed down two cases that are closely connected with the case at bar, viz.: Cowdery v. Herring, 106 Fla. 567, 143 So. 433, 144 So. 348; and McEwen v. Larson, 136 Fla. 1, 185 So. 866. Appellants rely on the latter; appellees, the former.
In the Cowdery case, supra, a widow was residing as the head of a family on certain homestead property in the city of Lakeland. She had constructed a two-story building on a portion of the property and rented it as a garage and storage building. There was also a one-story building on the property which Mrs. Cowdery rented as a paint shop. Neither the garage nor the smaller building had ever been personally used by Mrs. Cowdery as a part of her own business or residence. The question propounded to this court was whether or not such portions of the homestead property as were rented by Mrs. Cowdery as a principal means of her livelihood lost their identity as exempt homestead property. In answer to that question, Mr. Justice Davis, speaking for the court, said [106 Fla. 567, 143 So. 435]:
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