Saltzman v. Ahern, V-17

• Decision Date: 28 January 1975
• Docket Number: No. V-17,V-17
• Citation: 306 So.2d 537
• Parties: Herman SALTZMAN and Irene P. Saltzman, his wife, et al., Appellants, v. Lacey N. AHERN, Appellee.
• Court: Florida District Court of Appeals

Page 537

306 So.2d 537

Herman SALTZMAN and Irene P. Saltzman, his wife, et al., Appellants, v. Lacey N. AHERN, Appellee.

No. V-17.

District Court of Appeal of Florida, First District.

Jan. 28, 1975.

Robert E. Carrigan, Gainesville, for appellants.

Jere D. McWinn, Jacksonville, for appellee.

BOYER, Judge.

Both appellants and appellee claim title to a parcel of real estate, each claiming under separate conveyances from a common grantor, one James M. Dudley. Appellee filed a complaint to quiet title and appellants counterclaimed. The trial judge granted a motion for summary judgment, quieting title in appellee and appellants appealed.

Appellants first urge that the trial court should have dismissed appellee's complaint of its own motion, and that its failure so to do was error. That contention is totally devoid of merit.

Appellants' second point relates to the propriety of the entry of the summary judgment appealed. The primary thrust of appellants' argument relative to this point is that the deed from Dudley which forms the root of appellee's title was so ambiguous as to have raised an issue of material fact as to whether the deed conveyed a present interest or whether it was intended by Dudley to effect a testamentary disposition.

We have repeatedly announced the law applicable to the entry of summary judgments, and no useful purpose will be accomplished by repeating those pronouncements here. (Connell v. Sledge, et al., Fla.App., 306 So.2d 194, opinion filed January 16, 1975. See also Holl v. Talcott, Sup.Ct.Fla.1966, 191 So.2d 40)

The questioned deed was executed by Dudley on August 24, 1953. A standard printed form was utilized, but the grantor deleted the word 'warranty' and the 'warranting clause' as well as the words 'in fee simple', causing the deed to read (in material part) as follows:

'WITNESSETH, that the said grantor, in consideration of Ten ($10.00) dollars and other valuable consideration, the receipt whereof is hereby acknowledged, does give, grant, bargain, sell, alien, remise, release enfeoff, convey and confirm unto the said grantees and their heirs and assigns the lands situate in Duval County, State of Florida, described as follows:

(legal description of subject property)

'BUT RESERVING, HOWEVER, unto the said grantor a life estate in said above described lands for the period of his natural life.

'TO HAVE AND TO HOLD the same together with the hereditaments and appurtenances, unto the said grantees, and their heirs and assigns forever, subject, however, to the estate for life of the said grantor therein.'

Appellants did not question in their counterclaim the identity of the parties to the deed, nor that it was properly signed, witnessed and acknowledged, nor that it was delivered nor that there was any lack or failure of consideration. Appellants' sole contention is that the grantor, by making the changes in the deed form above mentioned, and by subsequently conveying the identical property to appellants' predecessors in title thereby evinced an intention that the subject deed not take effect during his lifetime but be considered instead as an attempted testamentary disposition.

In order to resolve the issue, there being no question as to execution, consideration or delivery, we must examine the deed itself. When the language of a deed is clear and certain in meaning and the grantor's intention is reflected by the...