Whittimore v. Cruce

• Decision Date: 18 October 1985
• Docket Number: No. BC-449,BC-449
• Parties: 10 Fla. L. Weekly 2078, 10 Fla. L. Weekly 2385 Florise C. WHITTIMORE, sometimes known as Mattie Florise Whittimore, Appellant, v. Truman Clyde CRUCE, Jr., Leonard DeLon Cruce, James Henry Cruce, Jr., June C. Diehl, Lila Carol Browne, Sarah Kay Shea, Wanda Cruce Hughey and Lea Diane Cruce Barnes, Appellees.
• Court: Florida District Court of Appeals

Page 761

479 So.2d 761

10 Fla. L. Weekly 2078, 10 Fla. L. Weekly 2385

Florise C. WHITTIMORE, sometimes known as Mattie Florise Whittimore, Appellant, v. Truman Clyde CRUCE, Jr., Leonard DeLon Cruce, James Henry Cruce, Jr., June C. Diehl, Lila Carol Browne, Sarah Kay Shea, Wanda Cruce Hughey and Lea Diane Cruce Barnes, Appellees.

No. BC-449.

District Court of Appeal of Florida First District.

Oct. 18, 1985.

Wilfred C. Varn and Robert M. Ervin, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.

Ernest M. Page, Jr., Madison, for appellees.

WIGGINTON, Judge.

We have before us for review an appeal from a final summary judgment and order denying rehearing on said judgment, holding there to be no genuine issue of material fact and finding that a warranty deed purporting to convey to appellant the land on which she resides was void for want of delivery during the lifetime of the grantor. We reverse.

Since 1972, appellant has resided on certain real property adjacent to her parents' home. She has paid for all the homeowners' insurance on her dwelling and has never paid rent for the use of the land or the dwelling. In 1978, appellant maintains that her parents decided to convey to her the land. Her father, John Albert Cruce, never executed a will; according to appellant, her parents felt that conveyance of the property by deed would be a more reliable transfer. Accordingly, a warranty deed was executed by her parents. Cruce took the deed to appellant at her home where she read the deed to him. He allegedly told appellant that the land was hers and that she should record the deed upon his death. He then informed her that he would place the deed in a metal file box, a family depository for important documents located in his home, and that if anything should happen to him that she could find the deed there.

On a later occasion, Cruce told appellant that her brother, A.W. "Pete" Cruce, would have the deed and that she should get the deed from Pete upon Cruce's death. On several occasions, Cruce removed the deed from the file box for appellant to read it to him. On those occasions, according to appellant, Cruce said to her, "I want you to understand that that place and what's on that place is yours."

From 1979 through 1981, ten acres of the land were rented to a paving company which paid Cruce the rent. Cruce placed the payments in certificates of deposit held jointly by him and appellant. Appellant has since received all the proceeds from the rental of the ten acres. In 1981, the paving company wished to enter into a written lease of the ten acres, but, upon appellant and her father's discussing the matter, appellant decided against the lease. The paving company discontinued its use of the ten acres.

Shortly after the execution of the deed to appellant, Cruce showed it to Pete and told him to give the deed to appellant upon his death and instruct appellant to record it. The file box in which the deed was placed was allegedly kept on a shelf in Cruce's bathroom, although appellant at one point deposed that the file box was kept in her father's bedroom. Pete was given keys to his parents' home and to the file box, and he and his father had mutual and continual access to the box. At times, Pete would exercise his access to the box with Cruce's consent and permission, but...