Shad v. Smith
| Decision Date | 15 November 1917 |
| Citation | 76 So. 897,74 Fla. 324 |
| Parties | SHAD v. SMITH. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Duval County; Daniel A. Simmons, Judge.
Bill in equity by Priscilla Smith, by Ketura Smith, her next friend against Charles Shad and Frederick R. Smith. Decree pro confesso against defendant Smith, and decree against defendant Shad, and he appeals. Affirmed.
Syllabus by the Court
While the findings and conclusions of a chancellor, where the evidence is not taken before him, but before a master or examiner, by reason whereof he is not afforded an opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous.
In equity, as well as at law, every presumption is in favor of the correctness of the rulings of the trial judge, and a final decree rendered by him, based largely or solely upon questions of fact, will not be reversed, unless the evidence clearly shows it to be erroneous.
Where the testimony is conflicting, but there is evidence to support the finding of the chancellor, the decree will not be reversed on the evidence.
No instrument is effectual as an alienation of or a conveyance or transfer of title to or any interest in the homestead real estate, without the joint consent of husband and wife when that relation exists, which joint consent shall be evidenced by a deed or mortgage duly executed and acknowledged by the husband and wife with the formalities prescribed by law for conveyances by husband and wife.
The signing, sealing, and delivery of a deed by a married women is not sufficient to convey her interest in the land described therein, whether such interest be dower, separate estate, or what not. In addition thereto, in order to render such decree effectual as to her, she must acknowledge the same in accordance with the statutory requirements.
Where a married woman fails to duly acknowledge before an officer the execution of a deed of conveyance to an interest in homestead real estate in accordance with the statutory requirements, even though her husband, who is the owner of the homestead property, properly executes and acknowledges such deed, it is ineffectual to convey the homestead real estate, for the reason that there has been no 'joint consent of husband and wife' or deed of conveyance 'duly executed by husband and wife,' which the Constitution (Const. art. 10, ss 1, 2, 4) mandatorily requires in order to make a conveyance of the homestead valid and effectual to pass the title thereto.
A wife has a dower interest in her husband's homestead real estate.
The law which authorizes designated officers to take the private examination of the wife was designed as a substitution for the proceedings at common law by fine and recovery, whereby the right of the wife on the one hand might be guarded, and a sure indefeasible and unquestionable transfer of her right secured on the other.
A deed of conveyance of homestead real estate by the owner, who is a married person, is not, under the Constitution (Const. art 10, s 4), 'duly executed' or effectual, unless the execution by the wife is acknowledged before an officer in substantial compliance with the statute, in addition to the signing, sealing, and delivery of the instrument by both husband and wife, and its due attestation by two witnesses.
A deed of conveyance signed, sealed, and delivered by the husband and by the wife is not effectual even as between the parties where the execution of it was not duly acknowledged by the wife.
Where the evidence is ample to sustain specific findings of the chancellor 'that the property in dispute is a homestead, and that no proper acknowledgment of the wife was ever taken as to her joinder in its attempted conveyance,' and no reversible errors of law or procedure appear, a decree based on such findings will be affirmed.
COUNSEL Frank L. Dancy and George C. Bedell, both of Jacksonville, for appellant.
Maynard Ramsey, of Jacksonville, for appellee.
On October 6, 1913, the appellee by her next friend brought a bill in equity against Charles Shad and Frederick R. Smith, the husband of Priscilla Smith, appellee.
In the bill of complaint it is in substance alleged that Frederick R. Smith was the owner of described five acres of land in Duval county, Fla., not within the corporate limits of any town or city, on which the husband and wife lived together as their homestead; that a conveyance of a portion of said land was made in January, 1913, to Shad, but that, though complainant signed the deed of conveyance, it was done, not voluntarily, but under stated constraints and misapprehensions, and that she did not acknowledge execution of the deed, and that the certificate of her acknowledgment is false; that she has never received any benefit from the transaction. It is prayed that the conveyance be canceled, and for appropriate relief. A decree pro confesso was entered against the defendant Frederick R. Smith. Shad's demurrer to the bill of complaint was overruled. A plea setting up matters relative to the conveyance as a bar to the suit was overruled. An answer was filed, and testimony taken before an examiner. The chancellor found specifically 'that the property in dispute is a homestead, and that no proper acknowledgment of the wife was ever taken as to her joinder in its attempted conveyance.' There were other findings not inconsistent with this. Appropriate decrees were rendered, and Shad appealed.
The finding of a chancellor on the testimony taken before an examiner will not be given the same effect as the verdict of a jury, because not based upon testimony of witnesses sworn and testifying before him, and if the evidence so taken before the examiner clearly shows that the conclusions of the chancellor were incorrect, his conclusions will be reversed. McGill v. Chappelle, 71 Fla. 479, 71 So. 836; Howard v. Sheffield, 74 So. 488.
While the findings and conclusions of a chancellor, where the evidence is not taken before him, but before a master or examiner, by reason whereof he is not afforded an opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous.
In equity, as well as at law, every presumption is in favor of the correctness of the rulings of the trial judge, and a final decree rendered by him, based largely or solely upon questions of fact, will not be reversed, unless the evidence clearly shows it to be erroneous.
Where the testimony is conflicting, but there is evidence to support the finding of the chancellor, the decree will not be reversed on the evidence. Millinor v. Thornhill, 63 Fla. 531, 58 So. 34; Johns v. Bowden, 72 Fla. 530, 73 So. 603; Hogeboom v. Anderson, 70 Fla. 393, 70 So. 312; Mock v. Thompson, 58 Fla. 477, 50 So. 673.
In sections 1, 2, and 4, article 10 of the state Constitution, it is provided that:
In Thomas v. Craft, 55 Fla. 842, text 847, 46 So. 594, 596 (15 Ann. Cas. 1118), the principle is announced that:
'No instrument is effectual as an alienation of or a conveyance or transfer of title to or any interest in the homestead real estate, without the joint consent of husband and wife when that relation exists, which...
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...22 Fla. 317; Walling v. C. & C. Groc. Co., 41 Fla. 479, 27 So. 46, 47 L.R.A. 608; Adams v. Malloy, 70 Fla. 491, 70 So. 463; Shad v. Smith, 74 Fla. 324, 76 So. 879; Wright v. Wright, 75 Fla. 7, 77 So. Phillips v. Lowenstein, 91 Fla. 89, 107 So. 350; McDonald v. McDonald Holding Co. (Fla.) 16......
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... ... 191, 74 ... So. 216, 1 A.L.R. 25; Hill v. Beacham, 79 Fla ... 430, 85 So. 147; Sandlin v. Hunter Co., 70 Fla ... 514, 70 So. 553; Shad v. Smith, 74 Fla. 324, 76 ... So. 897; Edney v. Stinson, 90 Fla. 335, 105 So ... "(2) ... Where the evidence is conflicting, the ... ...
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