Semple v. Semple , 82 Fla. 138 ( 1921 )

Whitfield, J.,

Dissenting. — The Constitution provides that ‘ ‘ a homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by tbe head of a family residing in this State, together with one thousand dollars’ worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists. ’ ’ Sec. 1, Art. X, Const. 1885.

A conveyance of the homestead real estate to the wife executed by the husband alone is void. Byrd v. Byrd, 73 Fla. 322, 74 South. Rep. 313; Thomas v. Craft, 55 Fla. 842, 46 South. Rep. 594.

In the Byrd case there were 'children whose rights in the homestead real estate were affected by the attempted conveyance of the homestead to the wife by the husband alone.

In Rawlins v. Dade Lumber Co., 80 Fla. 398, 86 South. Rep. 334, there were no children, and a conveyance of the homestead real estate to the wife by the husband was sustained on the ground that if under the peculiar facts in the case, the property had not lost its homestead character the conveyance was a mere relinquishment of the husband’s rights therein to the wife who had continuously remained on the place as her home, there being no children. And further that if the place had lost its homestead character the conveyance was under the facts good as against the mere judgment liens of creditors who obtained judgments against the husband subsequent to the conveyance by him to his wife. See also as to occupancy of homestead real estate Clark v. Cox, 80 Fla. 63, 85 South. Rep. 173.

The constitution does not expressly require the homestead to be occupied. The word “homestead’? implies actual or potential use for family home purposes coupled with acts or conduct showing intent to so use it.

In Oliver v. Snowden, 18 Fla. 823, text 835, it is said, “it must appear that the lands were actually used, or manifestly intended to be used, as a part of the home of the family.” The manifest intention is to be shown by proof of preparations made to occupy it immediately as a home. Groshold v. Newman, 21 Wall. (U. S.) 481, text 486.

The evidence shows that the land was procured for the purpose of building a home thereon and with the intent to make it the family home, the owner, who was the head of a family in which there was then one child, having before the middle of November, 1906, begun the building of a residence, clearing of ground, planting trees,- building a barn, etc., which preparations continued until the family moved on the place as their home either the latter part of December, 1906, or in January, 19.07. On December 9, 1906, when the house was partially constructed, perhaps had the roof on, and other improvements for home purposes had been made, the owner executed a deed of conveyance of the property to his wife. ’ This deed was recorded December 10, 1906, and delivered to the wife as a Christmas present, the husband testifying that he did not intend to divest himself of the home, but “thought she was the most trustworthy person to put it in, and I thought it would remain our home.” “She was a little homesick, and I thought she would take more interest in the property if I gave her a home of her own. ’ ’ This latter intent was manifestly formed at least a month after he begun and continued the erection of the house and the preparation of the place for the family, which was accomplished, and thence forward was and is the family home, the owner having no other home, but continuously claimed and treated it as his home place.

For a month before the deed was executed the owner worked daily on the place preparing it for the family home and the wife and child visited it at least once or twice and recognized it as the home place before the execution of the deed to the wife. From November 3, 1906, when the family arrived in Florida to make it their home they boarded in the Town of Arcadia, two miles from the land selected as the future home, and had their furniture stored in the town until it was moved to the place when the house was ready for occupancy. During this time the husband went to the place daily and worked there, making it ready for occupancy as a home for the family. Under these circumstances showing an intent to make the place the family home manifested by preparations for immediate occupancy as a home, the homestead rights of the family were impressed upon ,the property. See Ann. Cas. 1917A, 67; Shaw v. Kirby, 93 Wis. 379, 67 N. W. Rep. 700, 57 Am. St. Rep. 927; Woodbury v. Warren, 67 Vt. 251, 31 Atl. Rep. 295, 48 Am. St. Rep. 815; Bunker v. Coons, 21 Utah 164, 60 Pac. Rep. 549, 81 Am. St. Rep. 680; Upton v. Coxen, 60 Kan. 1, 55 Pac. Rep. 284, 72 Am. St. Rep. 341; Wike v. Garner, 179 Ill. 257, 53 N. E. Rep. 613, 70 Am. St. Rep. 102; Franklin v. Coffee, 18 Texas 413, 70 Am. Dec. 292; Reske v. Reske 51 Mich, 541, 16 N. W. Rep. 895, 47 Am. Rep. 594; Barnes v. White, 53 Texas 628; DeVille v. Widoe, 64 Mich. 593, 31 N. W. Rep. 533, 8 Am. St. Rep. 852; Neal v. Coe, 35 Iowa 407; Gill v. Gill, 69 Ark. 596, 65 S. W. Rep. 112, 86 Am. St. Rep. 213; 13 R. C. L. p. 593; 11 Stand. Ency. Proc. 302; 21 Cyc. 475; 15 Am. & Eng. Ency. Law (2nd ed.) 578.

The proofs of intent to occupy as a homestead and actual and continued preparations for immediate occupancy, followed by continued occupancy, as the only family home, are much stronger here than in Solary v. Hewlett, 18 Fla. 756, or Oliver v. Snowden, 18 Fla. 823, or Drucker v. Bosenstein, 19 Fla. 191.

While the owner of the homestead real estate and his family had not actually resided on the property as a home place when the deed to the wife was executed, yet the testimony clearly shows that the husband and wife made it plainly manifest that they intended to use the place as the home of the family, were preparing it for use as such and did in fact use it as a home place in pursuance of the intention and acts thereunder, which acts showing the intent were obvious and unmistakable before and at the time the deed was executed and delivered to the wife. Where the husband is the head of the family and the wife is the owner of the home place, homestead rights therein do not exist, and the family is not protected against the wife’s permissible contracts and conveyances affecting the property.

The property was impressed with homestead rights before the deed to the wife was executed, and as there was one child when the deed from the husband to the wife conveying the homestead real estate was executed, the attempted conveyance is ineffectual.

West, J., concurs.