Citation Numbers: 79 Fla. 391, 84 So. 190
Judges: Broavne, Ellis, Taylor, West, Whitfield
Filed Date: 3/26/1920
Status: Precedential
Modified Date: 10/19/2024
The declai*ati'on in this case is, omitting formal parts, as follows:
“The plaintiff, Hannah Hill, sues the defendant, First National Bank, of Marianna, Florida, a corporation, and*393 II. A. Bowles as Sheriff of Jackson C'ountv, Florida, because the said Sheriff by the direction of the said bank, levied an attachment and execution in favor of said bank against plaintiff and H. A. Bowles ás administrator of John Hill, deceased, on the E.% of N. EJ/Í, Sec. 8, T. i R. 10 W. in which plaintiff owned a two-thirds undivided interest, except one acre, and sold the isame under said execution, both defendants well knowing at the time that she was the head of a family living upon the homestead, that it was exempt from forced sale under the Constitution and laws of Florida, notwithstanding plaintiff ■claimed said exemption, and duly applied to said sheriff i'n the manner prescribed by law to have the same exempt a® her homestead before said sale. That in consequence of said levies and sales she failed to make a crop on said land, as she did not know how soon she might be dispossessed, and was put to muc’hi expense, trouble and annoyance to obtain a living for herself and orphan grandchildren that year and the succeeding year, 1917. That she had to employ counsel at great expense to bring suit to have said levies and sales set aside, and to enjoin plaintiffs from making any further sale of said homestead, and said suit was carried to the Supreme Court of State at great expense to> her before it was finally decided and she put to much, trouble, loss of time and expense in attending the Circuit Court and preparing her case, for which she claims $ 150.00 damages.
“2. And for second count plaintiff alleging each and every allegation in the first count says, that said defendants levied said attachment and execution upon one cow and calf of the value of $35.00.,belonging to plaintiff and sold them, notwithstanding she protested against the sale, claiming them as exempt to her. Therefore she claims |30'0.00 damages.”
The sixth plea is as follows:
“That at and before the institution of this suit, the plaintiff wa» indebted to the defendant, The First National Bank of Marianna, Florida, in’ the sum of Eight Hundred Sixty-one and 32/100 Dollars and interest thereon at eight per cent from October 20, 1915, in this to-wit: That the Circuit Court of Jackson County, Florida, on the 20th day of October, 1915, in the suit of The First National Bank of Marianna, Florida vs. Hannah Hill et al. duly rendered a judgment against the said defendants, for the sum of Eight Hundred Thirty-one and 15/100 Dollars, and also Thirty and 17/100 Dollars, costs of court, and said judgment is of record in. Minute Book S, page 42, Minutes of the Circuit Court of Jackson County, Florida, and is wholly unpaid and unsatisfied, and dedefendants here offer to set off so much of said judgment against plaintiff’s claim as may be necessary to cover the same.”
Issue was joined on the first and second pleas. All the other pleas were demurred to. .The demurrer was sustained as to the third, fourth, and fifth, but overruled a® to the sixth and seventh. There was a replication to the sixth and seventh pleas to which a demurrer was sustained and the case proceeded to trial.
At the conclusion of the testimony the court instructed the jury that, “the Constitution of the State of Florida exempts from levy and .sale a homestead of one hundred and sixty acres of land without the limits of an incorporated town or city to any head of a family residing in the State, I, therefore, instruct you that if the sheriff levied the execution on the homestead of the plaintiff,, as alleged in the declaration, and sold it under execution in favor of the First National Bank of Marianna, a corporation, it was a trespass, and the plaintiff is entitled to recover all the damages she sustained in consequence of said levy and sale, and also for the value of the cow aid calf, if you find from the evidence that the sheriff levied upon and sold them under'said execution. You will ascertain from the evidence the amount of damages which the plaintiff sustained, including any attorneys’ fese she has paid or contracted to pay in the injunction suit, allowing interest on the amount from the commencement of this suit. You will then deduct this amount from the judgment of the First National Bank of Marianna plead as a set off, and render a verdict in favor of said bank for the balance due upon said judgment.”
There was a verdict accordingly and judgment pursuant thereto by which it was adjudged that plaintiff take nothing by this action and that the defendants have
Several rulings of the trial court are assigned as er-x’or, but the principal contentions are till,at, first, a judgment is not a proper subject of set off in any case, and, second, .that a debt or demand arising under contract is not available as a set off in an action of tort. There is, however, presented by this record a question more important than either of these. It goes to the right of the defendants to set-off the judgment described in defendants’ sixth and seventh pleas against the claim for damages described in plaintiff’s declaration and is, we think, the decisive question in the case. If defendants’ judgment is not available In’any event as a set. off against plaintiff’s claim as described in her declaration for damages, a decision of the two questions stated becomes unnecessary.
By Section 1 of Article X it is ordained that: “A homestead to the extent of one hundred and sixty acres of land, ox* the half of one acre within the limits of any incorporated city or town, owned by the 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. * * * and no judgment or decree or execution shall be a lien upon exempted property except as provided In this article.”
Constitutional and statutory provisions relating to homestead exemptions are liberally construed in the in
The property described, in the declaration has been held by this court to lie the homestead of the plaintiff and ‘■exempt from forced sale.” Hill v. First National Bank of Marianna, 73 Fla. 1092, 75 South. Rep. 614.
It is a matter of record and was also stated in the oral argument in this case that the judgment offered to be set off against plaintiff’s claim is the identical judgment which this court, reversing the court below, had held was not a lien upon the property described in the declaration and from which judgment and the execution issued thereon such property was exempt from sale. So that the question is whether this judgment may be available as a set off in a suit by plaintiff against the defendant bank and the sheriff of the county to recover damages sustained by her because of the unlawful levy upon and sale of her homestead under such judgment? Such homestead itself was exempt from forced sale, and plaintiff could not be lawfully deprived of its use and enjoyment by any coercive process. The actual damage sustained by her because of the injury suffered as a result of the trespass by defendants upon the exempt real property and the conversion by them of the exempt personalty, and the judgment recovered therefor partake of the nature of the homestead property and are also exempt. Thompson oil Homestead and Exemptions, See. 748; Millington v. Laurer, 89 Iowa 322, 56 N. W. Rep. 533, 48 Am. St. Rep. 385; Reynolds v. Haines, 83 Iowa, 342, 49 N. W. Rep. 851; Keiser v. Seaton, 62 Iowa 463, 17 N. W. Rep. 664; Ellis v. Pratt City, 111 Ala. 629, 20 South. Rep. 649.
In the case of Carter’s Admrs. v. Carter, 20 Fla. 558, it was held that when property which may be claimed as
The homestead right is not limited to a mere holding of the legal title to the exempt property, “from forced sale,” it contemplates and includes the beneficial, peaceful and uninterrupted use and enjoyment of such property. Such right is superior to the claims of creditors. The policy of the law conferring it is to preserve the home for the family even at the sacrifice of just demands and to protect the family from destitution and want.
“The whole theory of the law with relation to- homesteads is based upon the idea that as a matter of public policy, for the promotion of the prosperity of the State, and to render independent and above want each citizen
The rights of the wife and family in homestead real estate are such that it can not be alienated without the joint consent of husband and wife when that relation exists (Section 1, Article X, Constitution of Florida), and an attempted conveyance in which there is not such joinder when such relation exists is ineffectual to convey any title to such property. Thomas v. Craft, 55 Fla. 842, 46 South. Rep. 594. The benefits of the homestead exemption law may not be waived by a householder in such a way as to deprive his family, of its protection. Carter’s Admrs. v. Carter, supra,. Neither does the death of such householder strip property so impressed of its character . as a homestead. It descends to his heirs exempt from liability for the indebtedness of the head of the family (Section 2, Article X, Constitution of Florida), and the right of the heirs to its exemption after it passes to them is not dependent upon a use by them of such property as a homestead. Miller v. Finegan, 26 Fla. 29, 7 South. Rep. 140; Raulerson v. Peeples, 77 Fla. 207, 81 South. Rep. 271.
To allow a defendant the benefits of a plea of set off in an action brought against him to recover the amount of damage sustained because of his wrongful invasion of plaintiff’s 'homestead rights-would, if defendant’s plea prevailed, result in the subjection by indirect methods of exempt property to the payment of defendant’s demands against plaintiff, although its subjection thereto directly is not permitted. The soundness of this assertion is sus
It may be said that the Constitution protects homestead property from a “forced sale” only and that the plea of set off in this case does not amount to a “forced sale” of plaintiff’s exempt property. Bixt such conten
We hold, therefore, that a plea of set off is not allowable in a case of this kind. To hold otherwise would be to destroy the spirit and efficacy of the homestead exemption laws. In so holding Ave are in accord Avith the great weight of authority. Thompson on Homesteads and Exemptions, Sec. 893; Freeman on Executions, Sec. 235; Millington v. Laurar, supra; Cleveland v. McCanna, 7 N. D. 455, 75 N. W. Rep. 908, 66 Am. St. Rep. 670; Ex parte Hunt & Tally, 61 Ala. 1; Collier v. Murphy, 90 Tenn, 300, 16 S. W. Rep. 465, 25 Am. St. Rep. 698; Wilson v. McElroy, 32 Pa. St. 82; Beckman v. Manlove, 18 Cal. 389; Treat v. Wilson, 65 Kan. 729, 70 Pac. Rep. 893; Curlee v. Thomas, 74 N. C. 51; Stagg’s Heirs v. Piland, 31 Tex. Civ. App. 245, 71 S. W. Rep. 762; Atkinson & Co. v. Pittman, 47 Ark. 464, 2 S. W. Rep. 114.
Defendants’ sixth and seventh pleas set up no defense to the cause of action stated in plaintiff’s declaration and such pleas should have been stricken. There Avas also error in the court’s charge to the jury.
The judgment is reversed.
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