Tingle v. Hornsby, A-287

• Decision Date: 26 March 1959
• Docket Number: No. A-287,A-287
• Citation: 111 So.2d 274
• Parties: Jeanette Parker TINGLE, Individually, widow of W. C. Tingle, Deceased, Appellant, v. Doris HORNSBY, Jeanette Parker Tingle, as Administrator of the Estate of Walter C. (W. C.) Tingle, deceased, and Leslie B. Pigue and Martha Corrine Pigue, Appellees.
• Court: Florida District Court of Appeals

Page 274

111 So.2d 274

Jeanette Parker TINGLE, Individually, widow of W. C. Tingle, Deceased, Appellant, v. Doris HORNSBY, Jeanette Parker Tingle, as Administrator of the Estate of Walter C. (W. C.) Tingle, deceased, and Leslie B. Pigue and Martha Corrine Pigue, Appellees.

No. A-287.

District Court of Appeal of Florida, First District.

March 26, 1959.

Rehearing Denied May 14, 1959.

Angus W. Harriett, Palatka, for appellant.

Eugene L. Eastmoore, Dowda & Millican and Earl G. Nicholson, Palatka, for appellees.

WIGGINTON, Acting Chief Judge.

This is an appeal by the widow administratrix from a summary final decree for the plaintiff-appellee, appellant's stepdaughter, pursuant to a declaratory action seeking to establish ownership of a certain contract to sell property formerly owned by the deceased husband and father of the parties, respectively.

By her complaint plaintiff appellee alleged, inter alia, that appellant had no right, title or interest in the property or the contract other than as the surviving widow of the decedent; that legal title thereto was in the decedent at his death and, therefore, passed to his estate; and that plaintiff and defendant are the sole surviving heirs-at-law. Defendant appellant's answer denied that title to the disputed contract was in the deceased individually, and alleged ownership thereof to have been in the deceased and herself as tenants by the entirety. In support of this allegation appellant recited that her work and industry were a material contribution to the value of the realty encompassed by the contract; and that because of his love and affection for her the decedent intended ownership of the contract to vest jointly as an estate by the entirety. The foregoing allegations were stricken from defendant's answer upon plaintiff's motion, and summary decree was entered for plaintiff. Both orders are attacked as constituting error on this appeal.

From the undisputed facts it appears that prior to his death on January 23, 1957, title to the realty, as well as certain personalty included in the contract to sell, was held in the deceased individually. However, on May 15, 1954, he entered into a contract to sell the land, together with the improvements and business operated thereon to the Pigues. This contract recites that decedent is the owner of the property to be sold and that he chose to sell for reasons of his health, but designates both the deceased and his wife, the appellant, as 'Sellers'. It provides that the sellers conditionally sell to the buyers the real estate and personal property described in the contract and agree to convey and property by deed and bill of sale to the buyers upon performance of the covenants set forth in the contract, including payment by the buyers of the purchase price in the manner set forth therein. It also provides that the installments of purchase price shall be paid at the office of the sellers at Crescent City; that the title to the property and contingent right of possession shall remain in the sellers until the purchase price is paid; that in case of default in payment of the purchase price the sellers, after notice, shall have the right to declare the contract at an end and take immediate possession of the property described; and all payments theretofore made are to be retained by the sellers as liquidated damages. It further provides that the buyers are prohibited from selling or encumbering any of the property without the consent of the sellers, and the buyer will keep the property insured in a company satisfactory to the sellers with loss, if any, payable to the sellers as their interest may appear.

It has long been the law of this jurisdiction that the vendor's act in executing a contract to convey the legal title to property upon the payment of an agreed purchase price constitutes the vendee as the real beneficial owner, legal title remaining in the vendor as trustee with the obligation to convey upon compliance with the terms of the contract. ¹ Under the doctrine of equitable conversion, the vendor's interest thereupon becomes personalty. ² And, it is equally well established that personal property may be held in an estate by the entirety. ³ Such estates have been held to be vested in husband and wife in various forms of personalty. ⁴ It is generally held that an estate by the entirety will arise from the running of a purchase money obligation to a husband and wife jointly, ⁵ even though the wife's interest therein arises by virtue of a gift from her spouse. ⁶ Thus, it is evident that in the instant case, the decedent's fee simple interest in the subject realty was converted by operation of law to a naked legal title held as a security interest and metamorphosed into a personal property right or chose in action.

It must be remembered that we are not called upon at this juncture to determine whether the instrument here considered did in law create an estate by the entirety. The burden of our labor is confined to the question of whether the contract, when considered in light of the pleadings and proof on which the summary judgment is predicated, is sufficient as a matter of law to preclude a finding that title thereto was held by the husband and wife as an estate by the entirety.

In order to create an estate by the entirety there must exist a unity of the estate; unity of possession; unity of control; and unity in conveying or incumbering the property so held. ⁷ The marital relationship between the decedent and appellant in this case is not questioned. According to the language and terminology employed in the contract, both husband and wife were named as sellers, and, as such, the joint recipients of the proceeds of the sale. Having been joined as sellers, it follows that any encumbrance or conveyance would also require joint action of the selling parties under the contract, since neither spouse can without the assent of the other, alien or forfeit any part of an estate by the entirety so as to defeat the rights of the other. ⁸ Although this...