Norton v. Baya
| Decision Date | 11 April 1924 |
| Citation | 88 Fla. 1,102 So. 361 |
| Parties | NORTON v. BAYA et al. |
| Court | Florida Supreme Court |
Rehearing Denied Nov. 29, 1924.
Suit by Blanche Norton Baya and others against Maude De Long Norton. From a decree for plaintiffs, defendant appeals.
Affirmed.
On Application for Rehearing.
Syllabus by the Court
Married man may alienate homestead by deed or mortgage executed by himself and wife; married man leaving widow or child surviving cannot make testamentary disposition of homestead. A married man may alienate his 'homestead so exempted by deed or mortgage duly executed by himself' and his wife but a married man who leaves a widow or a child surviving him cannot lawfully make a testamentary disposition of his homestead. Johns v. Bowden, 68 Fla. 32, 66 So. 155.
Attempted conveyance of homestead and other property, in effect a will by owner leaving wife or child, void as to homestead. An attempted conveyance of homestead real estate, and other property not so impressed, by the owner who leaves a wife or child surviving him, which in legal and practical effect is a will, is void as to such homestead.
Chancellor's findings not disturbed unless clearly erroneous. The findings of a chancellor on the facts will not be disturbed by an appellate court unless such findings are clearly shown to be erroneous.
Husband and wife's deed of homestead to third party contemporaneously deeding back to wife, ineffectual to convey title. Where there is a child or children of the husband, who is the head of the family, a joint deed of homestead real estate by the husband and his wife to a disinterested third perty, who pays no consideration therefor, and who contemporaneously therewith executes a deed for such property to the wife, is not an 'alienation,' in contemplation of the Constitution, by the homestead owner of such homestead real estate, and is ineffectual to convey title thereto from the husband to the wife.
Appeal from Circuit Court, Duval County; George Couper Gibbs, judge.
Axtell & Rinehart, of Jacksonville, for appellant.
Doggett Christie & Doggett and Bayard B. Shields, all of Jacksonville, for appellees.
By this suit it is sought to have two deeds purporting to convey certain lots of land located in the city of Jacksonville from John H. Norton to Maude De Long Norton, his wife, decreed to be null and void and of no force and effect. One of the deeds is from John H. Norton and Maude De Long Norton, husband and wife, to Alice Marie Hinman, and the other is from Alice Marie Hinman to Maude De Long Norton, the object of the conveyances admittedly being to transfer the title of the property described from John H. Norton to Maude De Long Norton, his wife, Alice Marie Hinman being no more than a conduit for the accomplishment of this end. Complainants are daughters of John H. Norton, issues of a former marriage, and their husbands. The defendant is the widow, John H. Norton having died. The deeds were not recorded until after his death.
The bill of complaint alleges that the deeds were not delivered and were not intended to be delivered during the lifetime of John H. Norton, the grantor. The defendant grantee avers that the deeds were delivered to her when signed, but at the request of her husband were not recorded until after his death.
The record presents an issue of fact. The court held that as to that portion of the land attempted to be conveyed which was the homestead of John H. Norton, the deeds were void and complainants were adjudged to be the owners in fee simple, and entitled to the possession thereof in accordance with the prayer of the bill, but subject to the dower interest of the defendant widow. As to the portion not so occupied and impressed the deeds were held valid. Upon appeal both parties assign error.
From the conclusion reached it is apparent that the court found the facts to be that it was the intention of the grantor, John H. Norton, that the delivery of the deeds to his wife, Mande De Long Norton, the grantee, should be effective after, but not before, his death, if she survived him, rendering them testamentary in character, and that upon his death the delivery of the deeds to her was consummated; but, because of the constitutional inhibition against the devise of homestead property where the testator leaves children surviving him, the court decreed the deeds, to the extent that they attempted to convey homestead property, to be void and therefore ineffectual. Section 4, art. 10, Const.; Johns v. Bowden, 68 Fla. 32, 66 So. 155. There is evidence in the record ample to sustain this finding of fact to which the principle of law announced was correctly applied. To summarize the evidence in the court's opinion would be of no benefit. The decree will be affirmed.
Affirmed.
On Application for Rehearing.
The controlling organic and statutory provisions are as follows:
Where there is a child or children of the husband, who is head of the family, homestead real estate may not be conveyed by deed made by the husband to the wife. In such circumstance an instrument purporting to be a deed from husband to wife is void. Byrd v. Byrd, 73 Fla. 322, 74 So. 313; Thomas v. Craft, 55 Fla. 842, 46 So. 594, 15 Ann. Cas. 1118. The reason for this rule is that homestead exemptions 'inure' to the 'heirs,' infant or adult, of the owner of the homestead, as well as to the widow. Section 2, art. 10, Const. The 'heirs' of the homestead owner, as well as the owner and his wife, if he has one, have an interest in the homestead real estate that can be 'alienated' only in the manner provided by the Constitution. Sections 1, 2, art. 10, Const.; Hutchinson v. Stone, 79 Fla. 157, 84 So. 151. And the homestead rights of the 'heirs' of the head of the family may be affected to their detriment if the homestead owner conveys his homestead real estate to his wife. Rawlins v. Dade Lumber Co., 80 Fla. 398, 86 So. 334.
To 'alienate' homestead real estate, as contemplated by the Constitution, means to convey or transfer the legal title or the beneficial interest owned and held therein. Adams v. Malloy, 70 Fla. 491, 70 So. 463; Thomas v. Craft, supra. If the prescribed method for the alienation of homestead real estate is not complied with, the attempt to convey as to the 'heirs' is a nullity. Hutchinson v. Stone, supra.
In this case there was a voluntary conveyance of homestead real estate by the homestead owner, who was head of the family, in which he was joined by his wife, to a disinterested third party, who contemporaneously therewith conveyed the homestead to the wife of such owner. This third party, grantee in the joint conveyance, paid no consideration for the property, and was in legal effect no more than a conduit employed in an attempt to transfer the title from the homestead owner to his wife, the obvious purpose being to vest in the wife absolute title in the property. This is not such an 'alienation' of the homestead as is required by the Constitution to accomplish that result. If given effect it would operate to transfer the legal title to the homestead from the husband to the wife, stripped of its homestead status or character, thereby converting her interest therein into absolute ownership, and divest his 'children,' who are his prospective 'heirs,' of the interest which, under the Constitution, inures to them. This is so because the homestead must be owned by the head of the family and the exemptions 'inure' to his 'widow' and 'heirs.' To uphold such a transaction would be to say that form and not substance is important, and, that although the thing attempted may not be done directly, it will be sanctioned and given effect...
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...merely as a conduit or intermediary, without consideration, conveys or quitclaims the same homestead property to the wife. Norton v. Baya, 102 So. 361, 88 Fla. 1. 'The implied limitations contained in a Constitution are as much a part of the organic law and are as effective as those which a......
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