Pasco v. Harley

• Decision Date: 03 April 1917
• Citation: 75 So. 30,73 Fla. 819
• Parties: PASCO v. HARLEY et al.
• Court: Florida Supreme Court

75 So. 30

73 Fla. 819

PASCO v. HARLEY et al.

Florida Supreme Court

April 3, 1917

On Petition for Rehearing, May 5, 1917.

Appeal from Circuit Court, Jefferson County; E. C. Love, Judge.

Bill by John Pasco, as receiver of the Jefferson County State Bank against James T. Harley and R. L. Kilpatrick, as Sheriff etc. Demurrer to bill sustained, and bill dismissed, and complainant appeals. Reversed.

Syllabus by the Court

SYLLABUS

Organic and statutory provisions relating to homestead exemptions should be liberally construed in the interest of the family home. But the law should not be so applied as to make it an instrument of fraud or imposition upon creditors.

The provisions of the homestead laws should be carried out in the liberal and beneficent spirit in which they were enacted, but at the same time great care should be taken to prevent them from becoming the instruments of fraud.

An execution issued on a judgment, called a writ of fieri facias, is a lien upon the personal property of the defendant in execution from the time such writ shall be delivered to the sheriff.

A statutory lien is as binding as a mortgage, and has the same capacity to hold land, so long as the statute preserves its force.

The right conferred by the homestead article of the state Constitution is to 'exemptions' of the stated property from forced sales and from liens, and the right may accrue after the property is acquired, by the owner becoming 'the head of a family residing in this state.'

Where judgment and execution liens upon a debtor's property are obtained by a creditor in enforcing payment of the debtor's promissory notes at a time when the debtor was not the head of a family and consequently not entitled to homestead exemptions, the debtor, upon subsequently becoming the head of a family by marriage, is not entitled to homestead exemptions in the property on which the statutory judgment and execution liens already exist, to the exclusion of the pre-existing liens.

The Constitution forbids judgment and execution liens only on 'exempted property,' and the property of a person who is not the head of a family is not 'exempted property' under the Constitution.

The mere change of the status of the owner of the property to that of 'the head of a family' does not destroy then existing judgment and execution liens of a bona fide creditor for value any more than such change of status would destroy a mortgage lien or an interest in the property that had previously passed to another.

The exemptions 'from forced sale under process of any court,' of certain homestead property 'owned by the head of a family residing in this state,' have reference to the beneficial interests as owned by the head of a family in the specified classes of property.

The Constitution does not contemplate that the exemptions allowed shall extend to any title, right, or interest in property that is not owned by the head of a family residing in this state.

COUNSEL Theo. T. Turnbull and B. J. Hamrick, both of Monticello, and Chas. E. Davis, of Madison, for appellant.

T. L Clarke and S.D. Clarke, both of Monticello, for appellees.

OPINION

WHITFIELD J.

The bill of complaint herein alleges in effect that on November 15, 1915, the receiver of the bank obtained a judgment against James T. Harley for $5,032.24 principal and interest, and $250 attorney fees on promissory notes given by Harley to the bank; that on December 1, 1915, execution issued on the judgment and was levied on the real and personal property of the defendant Harley; that the property was advertised to be sold on January 3, 1916; that on December 24, 1915, Harley delivered to the sheriff an affidavit that he is the head of a family and resides on a portion of the land levied upon and claimed his homestead exemption therein; that on December 28, 1915, the defendant Harley filed with the sheriff what purported to be a true and correct inventory of his personal property and claimed an exemption of $1,000 of such personal property; that when the action was instituted against Harley a writ of attachment was sued out and placed in the hands of the sheriff on June 27, 1915, and all the property both real and personal of the defendant Harley was attached and levied upon by the sheriff on January 28, 1915; that a notice of attachment in proper form was filed in the office of the clerk of the circuit court on January 28, 1915, and recorded; that the defendant James T. Harley was unmarried and was not the head of a family at the time of the rendition of the judgment against him on November 15, 1915, and at the time of the levy of the execution on December 1, 1915, and was married on December 15, 1915; that the defendant Harley is not entitled to the exemptions; that if such exemptions are allowed the collection of the debt will be defeated; that the sheriff was proceeding to set apart the homestead exemptions as claimed. A restraining order was issued against Harley and the sheriff. Subsequently a demurrer to the bill of complaint was sustained, and the complainant not desiring to amend, the bill was dismissed.

On an appeal taken by the complainant the question to be determined is whether the right to homestead exemptions is superior to or subject to the liens impressed upon the property by the rendition of the judgment and the levy of the execution issued thereon before the acquisition of the right to homestead exemptions in the property.

The Constitution provides that:

'A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this state, together with one thousand dollars' worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists. But no property shall be exempt from sale for taxes or assessments, or for the payment of obligations contracted for the purchase of said property, or for the erection or repair of improvements on the real estate exempted, or for house, field or other labor performed on the same. The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner; and no judgment or decree or execution shall be a lien upon exempted property except as provided in this article.' Section 1, art. 10, Constitution of 1885.

Provision is made by statute for setting apart homestead exemptions when improperly levied upon. Section 2520 et seq., Gen. Stats. of 1906; chapter 6927, Acts 1915; Christopher v. Bowden, Sheriff, 17 Fla. 603; McMichael v. Grady, 34 Fla. 219, 15 So. 765; McMichael v. Eckman, 26 Fla. 43, 7 So. 365.

Organic and statutory provisions relating to homestead exemptions should be liberally construed in the interest of the family home. But the law should not be so applied as to make it an instrument of fraud or imposition upon creditors. Milton v. Milton, 63 Fla. 533, 58 So. 718.

The provisions of the homestead laws should be carried out in the liberal and beneficient spirit in which they were enacted, but at the same time great care should be taken to prevent them from becoming the instruments of fraud. Drucker v. Rosenstein, 19 Fla. 191; Jetton Lumber Co. v. Hall, 67 Fla. 61, 64 So. 440, 51 L. R. A. (N. S.) 1121.

Section 1600, General Statutes 1906, provides that:

'Every judgment at law (and decree in equity) which shall be entered in any of the circuit courts of this state shall create a lien and be binding upon the real estate of the defendant in the county where rendered.' Florida Compiled Laws 1914; Union Bank v. Heirs of Powell, 3 Fla. 175, 52 Am. Dec. 367; McClellan v. Solomon, 23 Fla. 437, 2 So. 825, 11 Am. St. Rep. 381; Moseley v. Edwards, 2 Fla. 429; Curry v. Lehman, 55 Fla. 847, 47 So. 18.

An execution issued on a judgment, called a writ of fieri facias, is a lien upon the personal property of the defendant in execution from the time such writ shall be delivered to the sheriff. Love v. Williams, 4 Fla. 126; Kimball v. Jenkins, 11 Fla. 111, text 123, 89 Am. Dec. 237.

A statutory lien is as binding as a mortgage, and has the same capacity to hold land, so long as the statute preserves its force. Rankin v. Scott, 12 Wheat. 177, 6 L.Ed. 592. There can be no difference in principle between a mortgage and a statutory lien. The one is as binding as the other. Andrews v. Doe ex dem. Wilkes, 6 How. (Miss.) 554, text 568, 38 Am. Dec. 450; Moseley v. Edwards, 2 Fla. 429, text 430; Kimball v. Jenkins, supra.

Section 1 of article 10 of the Constitution confers a right that stated property 'owned by the head of a family residing in this state' 'shall be exempt from forced sale under process of any court,' and from the lien of any 'judgment or decree or execution' except 'for taxes or assessments, or for the payment of obligations contracted for the purchase of said property, or for the erection or repair of improvements on the real estate exempted, or for house, field or other labor performed on the same.' The right thus conferred is to 'exemptions' of property from forced sales and liens. Under section 2 of the article the 'exemptions' 'shall inure to the widow and heirs of the party entitled to such exemption, and shall apply to all debts, except as specified in' section 1. The 'exemptions' 'inure to the widow and heirs of the party entitled to such exemption,' along with the property as it may be divided under the statutes regulating the devolution of property. Palmer v. Palmer, 47 Fla. 200, 35 So. 983; Godwin v. King, 31 Fla. 525 13 So. 108; Carter v....