Newman v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 04 April 1935
• Citation: 160 So. 745,119 Fla. 641
• Parties: NEWMAN et ux. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: Florida Supreme Court

160 So. 745

119 Fla. 641

NEWMAN et ux. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

Florida Supreme Court, Division A.

April 4, 1935

Suit by the Equitable Life Assurance Society of the United States against William F. Newman and wife. From an order denying a motion to dismiss the bill of complaint, defendants appeal.

Affirmed. Appeal from Circuit Court, Duval County; Miles W. Lewis, judge.

COUNSEL

Marion B. Jennings, of Jacksonville, for appellants.

Knight Adair, Cooper & Osborne, H. P. Osborne, and John M. McNatt all of Jacksonville, for appellee.

OPINION

WHITFIELD Chief Justice.

This appeal is from an order denying a motion to dismiss a bill of complaint brought by the assurance company to enforce the lien of a mortgage given by husband and wife upon described real estate, of which property it is alleged the husband and wife 'were then and there seized and possessed.' The mortgage instrument covenants 'that said mortgagors are indefeasibly seized of said lands in fee simple.'

The grounds of the motion to dismiss are that the mortgage is a nullity and that it is void.

The contentions for appellants are that at common law a conveyance of real estate held by the entireties could not be made by livery of seizin and that the Florida statute of uses makes deeds of conveyance operative to pass title to land only when livery of seizin could be made; and the statutes of this state do not authorize estates by entireties to be conveyed by deeds executed by the husband and wife, even though such execution by the wife is acknowledged by her before an officer separate and apart from her husband, as provided by section 5676(3803), Comp. Gen. Laws; that the statutory command that 'conveyance by fine or by common delivery shall never be used in this State,' section 5667(3794), Comp. Gen. Laws, merely suspends the use of such procedure in cases where the statutory acknowledgment before an officer by a married woman, separately and apart from her husband, that she executed a deed or mortgage freely and voluntarily, etc., is made a substitute for the common-law procedure of fine and recovery; and that no statute makes such a substitute applicable to conveyance of estates held by the entireties.

By statute the common law of England, except as it may be inconsistent with the Constitution and laws of the United States and of the state of Florida, is in force in this state. Acts Nov. 6, 1829, section 87(71), Comp. Gen Laws.

By the common law the husband's real estate was under his control and could be conveyed by him by livery of seizin, subject to the wife's dower rights. Unless otherwise provided by the muniments of title, the wife's real estate was subject to the husband's possession and control.

Under the common law of England, lands in fee-simple ownership were usually transferred by feoffment with livery of seizin, as by a competent feoffer or owner taking a turf or twig from the land and delivering it 'to the feoffee, in name of seizin of the land.'

The wife could not convey her lands by livery of seizin even if her husband joined with her, because the husband had possession and control of the wife's lands and because at common law the husband and wife were regarded as one person, and she was under his influence, therefore not competent to dispose of her real estate or of her dower interest in the husband's land. By a collusive judicial suit in fine or common recovery brought against the husband and the wife by a proposed grantee, in which the wife was by some court officer questioned apart from her husband to ascertain if she freely consented to the disposition of her lands or of her dower rights in her husband's lands, her title or right was passed by adjudication to the grantee, who thereby took the title and right of both husband and wife. See Scott v. Fairlie, 81 Fla. 438, 89 So.128; Christy v. Burch, 25 Fla. 942, brief 964, 2 So. 258; 30 C.J. 755. 2 Minor's Institutes 470 et seq.; 2 Thompson on Real Property, § 1735 et seq.; 2 Cooley's Blackstone, 182, 355; 2 Kent's Commentaries, 151; Coke on Littleton, 326a; 30 C.J. 755.

Where husband and wife during coverture acquire in their joint names the ownership of land, it is an estate by the entireties, unless otherwise stated in the acquisition. The husband and wife hold such an estate per tout, et non per mie, each having an indivisible interest in the whole; and not permie et per tout as joint tenants or tenants in common, where each has an undivided severable interest. Each spouse owns the entire property as one estate, the survivor retaining the entire estate relieved of the interest therein had by the deceased spouse. English v. English, 66 Fla. 427, 63 So. 822; Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So. 376.

By the common law the husband could not convey an estate by the entireties except subject to the wife's indivisible right to the entire estate, should she survive the husband. If the husband conveyed such an estate and he survived his wife, her rights ceased, and his conveyance estopped him. Under the Florida law, an estate by the entireties can be conveyed only by deed duly executed by husband and wife which includes a separate acknowledgment by the wife as required by section 5676 (3803), Comp. Gen. Laws.

At common law estates by the entireties could not be conveyed by livery of seizin by the husband because of the wife's indivisible interest in such estate and because of the legal fiction of her unity with her husband and his constraint over her. Such estates as well as dower and other interests the wife had in lands were conveyed by means of collusive suits known as fine and common recovery referred to above.

By an act of the Territorial Legislative Council, approved November 15, 1828, it was enacted that:

'No estate * * * of freehold * * * in * * * any * * * lands * * * shall be created, made, granted, transferred or released in any other manner than by deed in writing, signed, sealed and delivered in the presence of at least two subscribing witnesses.' Section 5660(3787), Comp. Gen. Laws.

'By deed of bargain and sale, or by deed of lease and release, or of covenant to stand seized to the use of any other person, or by deed operating by way of covenant to stand seized to the use of another person, of or in any lands or tenements in this State, the possession of the bargainor, releasor or covenantor shall be deemed and adjudged to be transferred to the bargainee, releasee or person entitled to the use as perfectly as if such bargainee, releasee or person entitled to the use had been enfeoffed by livery of seizin of the land conveyed by such deed of bargain and sale, release or covenant to stand seized: Provided, that livery of seizin can be lawfully made of the lands or tenements at the time of the execution of the said deeds or any of them.' Section 5668(3795), Comp. Gen. Laws.

'Any married woman having a right of dower in any real property may relinquish it by joining in the conveyance or mortgage of such real property, or by a separate deed executed in like manner as other conveyances.' Section 5675(3802), Comp. Gen. Laws.

By an act of February 4, 1835, it was enacted that:

'Conveyance by fine or by common recovery shall never be used in this State.' Section 5667(3794), Comp. Gen. Laws.

'Any married woman owning real property may sell, convey or mortgage it as she might do if she were not married, provided her husband join in such sale, conveyance or mortgage.' Section 5674(3801), Comp. Gen. Laws.

'To render such sale, conveyance, mortgage or relinquishment, whether of separate estate or of dower, effectual to pass a married woman's estate or right, she must acknowledge, before some officer authorized to take acknowledgment of deeds, separately and apart from her husband, that she executed the same freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband, and the officer's certificate shall set forth all the foregoing requirements.' Section 5676(3803), Comp. Gen. Laws. See, also, section 5689(3816) et seq., Comp. Gen. Laws.

Chapter 4038, Acts of 1891, prescribes a form of deed of conveyance of land by which it is covenanted that the grantor 'has granted, bargained, and sold' described land; and enacts that:

'A deed executed in the foregoing form shall be held to be a warranty deed with full common law covenants, and shall just as effectually bind the grantor, and his heirs, as if said covenants were specifically set out therein. And this form of deed when signed by a married woman shall be held to convey whatever interest in the property conveyed which she may possess.

'Such deeds shall be executed and acknowledged as is now or may hereafter be provided by the law regulating conveyances of realty by deed.' Sections 5662(3789), 5663(3790), 5661(3788), Comp. Gen. Laws.

The Constitution of 1885 provides that:

'All property, real and personal, of a wife owned by her before marriage, or lawfully acquired afterward by gift, devise, bequest, descent, or purchase, shall be her separate property, and the same shall not be liable for the debts of her husband without her consent given by some instrument in writing executed according to the law respecting conveyances by married women.' Section 1, art. 11; section 26, art. 4, Const. 1868; Acts No. 9, March 6, 1845; chapter 150, McClellan's Digest, p. 754.

The Constitution defines homestead exemptions in real and personal property owned by the head of a family residing in this state, and provides that:

'The real estate shall not be alienable without the joint consent of husband and wife, when that relation exists.'

And that:

'Nothing in this article shall be construed to prevent the holder of a homestead...