Potter v. Garrett

• Decision Date: 12 January 1951
• Citation: 52 So.2d 115
• Parties: POTTER v. GARRETT.
• Court: Florida Supreme Court

Page 115

52 So.2d 115

POTTER v.GARRETT.

Supreme Court of Florida, en Banc.

Jan. 12, 1951.

Rehearing Denied March 9, 1951.

Walter Warren, Leesburg, for appellant.

T. G. Futch, Jr., Leesburg, for appellee.

TERRELL, Justice.

This is the second time we have been confronted with this case.It involves the homestead of E. B. Ray and the parties to it are his daughters.SeeGarrett v. Potter, 160 Fla. 707, 36 So.2d 374, in which we reversed the decree of the chancellor, striking paragraphs three and four of the amended bill of complaint.The amended bill prayed for partition of the homestead and for an accounting of moneys advanced by petitioner to pay principal and interest on a mortgage against the homestead, for the payment of taxes and other moneys expended by petitioner for the benefit of the homestead, and that respondent be required to make contribution to petitioner of one-half the funds so expended from her portion of the lands sought to be partitioned.

When the mandate went down, defendant filed her answer.A motion to strike portions of the answer was granted and the chancellor entered his final decree.The portions stricken had to do with that part of defendant's answer, claiming rental of the plaintiff for occupancy and use of the homestead.The present appeal is from the final decree as amended.The major controversy in this appeal seems to grow out of a difference between counsel as to what this court decided in the former appeal.

The amended bill of complaint was filed on the theory that E. B. Ray and his wife were completely destitute long before they died and that certain advances by the appellee to pay principal and interest on the mortgage against the homestead, for payment of taxes, and other expenditures for the benefit of the homestead--evidently claim for support of the father and mother was abandoned--should be repaid to the extent of half the amount so expended and that a lien should be impressed on defendant's interest in the homestead to secure payment.It was alleged that the father and mother were totally without income, were destitute and that they would have lost their home if appellee had not come to their rescue and advanced the moneys for these amounts.

The main controversy in the former appeal was whether or not the correct procedure was followed.We held that notwithstanding a different proceeding might have been brought, the suit by partition was the most expeditious and adequate.We also held that there was...