Stanley v. Powers

• Decision Date: 30 March 1936
• Citation: 166 So. 843,123 Fla. 359
• Court: Florida Supreme Court
• Parties: STANLEY et al. v. POWERS et al.

166 So. 843

123 Fla. 359

STANLEY et al. v. POWERS et al.

Florida Supreme Court

March 30, 1936

Rehearing Denied April 13, 1936.

Suit by Margaret D. Stanley and husband, as tenants by entireties against Herman Powers and another. From an order dismissing the bill, complainants appeal.

Affirmed. Appeal from Circuit Court, Polk County; H. C Petteway, judge.

COUNSEL

George P. Garrett, of Orlando, for appellants.

Carver & Langston and Gordon Petteway, all of Lakeland, for appellees.

OPINION

BUFORD Justice.

The appeal in this case brings for review an order denying temporary restraining order and an order dismissing bill of complaint. By the bill of complaint it was sought to enjoin sale under an execution of certain real estate owned by the defendants in execution, husband and wife, as an estate by the entireties.

It is sough in this appeal to have us review the judgment on which the execution issued. In this proceeding, that judgment may be reviewed only in so far as to determine whether or not it is a void judgment. If it is not a void judgment, then it could not successfully be attacked in this proceeding but should have been attacked on direct review by writ of error.

The record shows that a judgment was entered against one A. P Stanley and one Margaret D. Stanley in an action for tort committed by the operation of a motor driven vehicle. The parties were not described as husband and wife, although that relation is shown to have existed. They were sued as joint tort-feasors. Under such conditions, a plaintiff may sue either one or the other, or both, of the tort-feasors, and where alleged joint tortfeasors are sued judgment may be recovered against one while no judgment is recovered against the other. See Anderson v. Crawford, 111 Fla. 381, 149 So. 656.

That a married woman may be sued in tort, and judgment recovered against her is settled beyond question in this jurisdiction. See Meeks v. Johnston, 85 Fla. 248, 95 So. 670; Greene v. Miller, 102 Fla. 767, 136 So. 532; Banfield v. Addington, 104 Fla. 661, 140 So. 893; Ballenger v. Mark, 115 Fla. 95, 155 So. 106.

So, we must hold that the power existed in the court on proper pleadings and under proper proof to enter judgment against a married woman for tort. Whether or not such judgment is properly entered is, as heretofore stated, a matter to be considered by the appellate court on direct review of the proceedings on writ of error. Fiehe v. Householder Co., 98 Fla. 627, 125 So. 2; Parker Bros. v. Fagan (C.C.A.) 68 F. (2d) 616; Malone v. Meres, 91 Fla. 709, 109 So. 677; Palm Beach Estates et al. v. Croker, 111 Fla. 671, 152 So. 416.

Since it is not made to appear that the judgment upon which the execution issued is void, the next question for our determination is whether or not interest of a wife in an estate held by the husband and wife as an estate by the entireties may be subject to sale under execution issued upon a judgment rendered against the wife, and whether or not the interest of a husband in an estate held by the husband and wife as an estate by the entireties may be sold under execution to satisfy judgment against the husband; in each case it appearing that judgment was one obtained in a tort action.

We hold that in the present case it is immaterial that it so happened that the husband and wife were sued as joint tortfeasors and that a judgment was obtained against each of them without them having been sued as husband and wife. The status and result must be the same as if they had been sued as husband and wife. The suit was against husband and wife alleged to be joint tort-feasors. A judgment was obtained which may be satisfied out of property of either or both.

It is well settled that an estate by entireties exists in Florida. See English v. English, 66 Fla. 427, 63 So. 822; Ohio Butterine Co. et al. v. Hargrave et ux., 79 Fla. 458, 84 So. 376, 378; Bailey v. Smith, 89 Fla. 303, 103 So. 833; Phare v. Randall, 98 Fla. 858, 122 So. 217; Ferris-Lee Lumber Co. v. Fulghum, 98 Fla. 171, 123 So. 697; Allardice & Allardice v. Weatherlow, 98 Fla. 475, 124 So. 38; Anderson v. Trueman, 100 Fla. 727, 130 So. 12, 14; Logan Moore Lumber Co. v. Legato, 100 Fla. 1451, 131 So. 381; Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223; Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792; Lindsley v. Phare, 115 Fla. 454, 155 So. 812; Whetstone v. Coslick, 117 Fla. 203, 157 So. 666, 95 A.L.R. 455; Newman v. Equitable Life Assurance Society, 119 Fla. 641, 160 So. 745.

Section 2802, R.G.S., section 4488, C. G.L., provides as follows:

'In Counties Where Rendered.--Every judgment at law (and decree in equity) which shall be entered in any of the circuit courts of this State shall create a hen and be binding upon the real estate of the defendant in the county where rendered.'

Section 2803, R.G.S., section 4489, C.G.L., is as follows:

'In Other Counties.--Such judgments and decrees shall create a lien upon the real estate of the defendant situated in any other county than the one in which the same shall have been rendered, when a certified transcript of the said judgment or decree shall have been recorded in the county in which the real estate so sought to be bound may be situated.'

Those cases in which it has been held that the real estate owned by husband and wife as tenants by entireties is subject to levy under attachment or execution in actions upon notes executed by the husband and wife for consideration binding upon both, and in which the wife had not been adjudicated a free dealer, cannot have application in this state, because a wife not a free dealer cannot become bound jointly with her husband on a note.

Our conclusion is that the provisions of section 2 of article 11 of the Constitution do not apply to judgments against a married woman recovered for antenuptial debts as in the case of McGill v. Cockrell, 81 Fla. 463, 88 So. 268, or the judgments recovered against a married woman in tort actions.

In Anderson v. Trueman, supra, it was held that: 'An estate by the entireties * * * is not a part of the 'separate property' of a married woman as referred to in article 11 of the Constitution and the married women's property acts of this state.'

Such an estate is vested in husband and wife as one person. Logan Moore Lumber Co. v. Legato, supra.

Neither spouse can sell, forfeit, or encumber any part of the estate without consent of the other. Logan Moore Lumber Co. v. Legato, supra; Bailey v. Smith, supra; Ohio Butterine Co. v. Hargrave, supra; Hart v. Atwood, 96 Fla. 667, 119 So. 116.

In the latter case we held, quoting with approval from Ohio Butterine Co. et al. v. Hargrave, supra:

'The interest of a husband in an estate by entireties has been held to be a vested interest, an as such the subject of a lien of a judgment against him, but the courts are not in harmony upon the question, and the better view appears to be that where under married Woman's Acts the husband no longer has the right to the possession and control of the property of the wife, there is nothing which he can individually dispose of or encumber, or which can be sold on execution for his debts, and therefore there is nothing to which a lien may attach.'

And in the Hargrave Case we said:

"We are of the opinion that from the peculiar nature of this 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 encumbering it; and it necessarily and logically results that it can not be seized and

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