Ohio Butterine Co. v. Hargrave

• Decision Date: 05 April 1920
• Citation: 79 Fla. 458,84 So. 376
• Parties: OHIO BUTTERINE CO. et al. v. HARGRAVE et ux.
• Court: Florida Supreme Court

84 So. 376

79 Fla. 458

OHIO BUTTERINE CO. et al. v. HARGRAVE et ux.

Florida Supreme Court

April 5, 1920

Appeal from Circuit Court, Osceola County; Jas. W. Perkins, Judge.

Bill by the Ohio Butterine Company and American Bakeries Company against J. L. Hargrave and wife. Demurrer to bill sustained and, on complainants' refusal to amend, dismissed, and complainants appeal. Orders affirmed.

Syllabus by the Court

SYLLABUS

Where land was conveyed to both husband and wife, an estate by entirety was created at common law, and upon the death of one spouse the entire estate went to the other. The married woman's laws of this state have not destroyed such estate, and they are still recognized.

From the peculiar nature of such an estate, and from the legal relation of the parties, there must be unity of estate, unity of possession, unity of control, and unity in conveying or incumbering it; and it necessarily and logically results that it cannot be seized and sold upon execution for the separate debts of either the husband or the wife. The estate is placed beyond the exclusive control of either of the parties, or the reach of creditors, unless it can be successfully attacked and set aside for fraud.

The right of the wife to the joint enjoyment of the estate during the marriage is as valuable and sacred as the right of taking the entire estate by survivorship upon the death of her husband. The rights of the wife in the joint property are as sacred as those of the husband, and should be as firmly secured, guarded, and protected by law as are his.

A bill in equity, containing no allegations of fraud, seeking to sequester a portion of the rent derived from an estate by entirety to the satisfaction of the judgment against the husband alone, is demurrable for want of equity; to permit such a procedure would be as hostile to the interest of the wife to the joint use, occupation, possession, and enjoyment of the estate as the levy of a fi. fa. upon the interest of the husband in the land.

COUNSEL Johnston & Garrett, of Kissimmee, for appellants.

Kribbs Akerman & Steed, of Kissimmee, for appellees.

OPINION

WILLS Circuit Judge

Circuit Judge. The appellants filed their bill of complaint against the appellees, in which they allege they severally secured judgment in 1918 against the appellee J. L. Hargrave; that executions issued on said judgments; that the land described in the bill is the only piece of property assessed in the name of J. L. Hargrave; that the property was deeded to J Louis Hargrave and Anna M. Hargrave, his wife, on June 25, 1914, and deed recorded August 24, 1914, and that said property still stands in these names; that J. Louis Hargrave and J. L. Hargrave, the defendant in this case, is one and the same person; that they are unable to levy upon said land, because the same is held in an estate of entirety by the defendants; that said property is not the homestead of the defendant, and is now being rented by the defendants to other persons and at a reasonable rental value of $25 per month; that there appears on the records of Osceola county two unsatisfied mortgages against said property given in 1914 and 1917, respectively, by the defendants; that complainant is informed that the mortgage given in 1917 has been paid.

The bill prays that the court will adjudicate the interest of J. L. Hargrave in the premises and subject the interest of the said Hargrave to the lien and satisfaction of appellant's judgments without injuring or interfering with the lawful rights of Anna M. Hargrave in the premises; that for this purpose the court will take possession of the usufruct of said property during the life of J. L. Hargrave by a proper officer, and shall manage and control the same, and collect the rents and profits from the premises, and apply the same to the satisfaction of the said judgment; that the officer appointed by this court for this purpose shall be placed under bond and shall be a disinterested third party, and shall be held to account to the court for his acts and doings hereunder, and shall be authorized, subject to the right of survivorship existing in Anna M. Hargrave, to lease and rent the said premises for a sum satisfactory to this court, and, after keeping the said property properly insured, taxes thereon paid, and repairs properly attended to, apply the balance, if any, to the satisfaction of said judgments until the same shall be extinguished by payment; and thereupon, after proper accounting, that the said officer shall be discharged, and the property returned to the owners.

The defendants demurred to the bill upon the following grounds:

(1) That the said bill is bad in substance.

(2) That there is no equity in said bill.

(3) That the said bill is vague, indefinite, uncertain, and insufficient.

(4) That there can be no partition of an estate held in entirety.

(5) That the ownership vested in the defendant J. L. Hargrave, one of the defendants herein, is of such a nature that it cannot be partitioned or sold or subjected to a writ of execution.

(6) That, under the laws of this state, property held by a husband and wife as an estate of entirety cannot be subjected to the debts of the husband.

The court sustained the demurrer and allowed the appellants to amend and upon their refusal to amend dismissed the bill.

There is a diversity in the holdings of the courts of the different states upon the question whether or not the husband has such an interest in an estate by entirety as can be subjected to sale under a judgment against him alone, or the rents and profits from such estate sequestered to the payment of such judgment.

One class of cases proceed upon the theory that at common law a husband was entitled to the possession and control and could dispose of the rents and profits during their joint lives.

Another class of cases hold that the laws entitling wives to hold separate property, commonly known as the married woman's acts, abolished estates by entirety as known to the common law, and when a deed was made jointly to husband and wife, they held the lands as an estate in common or joint tenancy, except as to survivorship.

Still another class decide that, while the estate in itself cannot be subjected to a judgment against the husband alone, the rents and profits of such estate may be sequestered for the payment of such judgment.

In this state estates by entirety are still recognized as at common law except as modified by statute or constitutional provisions.

'Where land was conveyed to both husband and wife an estate by entirety was created at common law, and upon the death of one spouse the entire estate went to the other. The common law has been expressly declared by statute to be of force in this state, except where it has been modified by competent governmental...