Norton v. Baya

West, J.

By this suit it is sought to have two deeds purporting to convey certain lots of land located in the City of Jacksonville from John H. Norton to Maude DeLong Norton, his wife, decreed to be null and void and of no force and effect. One of the deeds is from John H. Norton and Maude DeLong Norton, husband and wife, to Alice Marie Hinman, and the other is from Alice Marie Hinman to Maude DeLong Norton, the object of the conveyances admittedly being to transfer the title of the property described from John IT. Norton to Maude DeLong-Norton, his wife, Alice Marie Hinman being no more than a conduit for the accomplishment of this end. Complainants are daughters of John H. Norton, issues of a former marriage, and their husbands. The defendant is the widow, John H. Norton having died. The deeds were not recorded until after his death.

The bill of complaint alleges that the deeds were not delivered and were not intended to be delivered during the lifetime of John H. Norton, the grantor. The defendant grantee avers that the deeds were delivered to her when signed, but at the request of her husband were not recorded until after his death.

The record presents an issue of fact. The court held that as to that portion of the land attempted to be conveyed which was the homestead of John H. Norton, the deeds were void and complainants were adjudged to be the owners in fee simple and entitled to the possession thereof in accordance with the prayer of the bill, but subject to the dower interest of the defendant widow. As to the portion not so occupied and impressed the deeds were held valid. Upon appeal both parties assign error.

Prom the conclusion reached it is apparent that the court found the facts to be that it was the intention of the grantor, John H. Norton, that the delivery of the deeds to his wife, Maude DeLong Norton, the grantee, should be effective after, but not before his death, if she survived him, rendering them testamentary in character, and that upon his death the delivery of the deeds to her was consummated; but because of the constitutional inhibition against the devise of homestead property where the testator leaves children surviving him, the court decreed the deeds, to the extent that they attempted to convey homestead property, to be void and therefore ineffectual. Sec. 4, Art. 10, Const.; Johns v. Bowden, 68 Fla. 32, 66 South Rep. 155. There is evidence in the record ample to sustain this finding of fact to which the principle of law announced was correctly applied. To summarize the evidence in the court’s opinion would be of no benefit. The decree will be affirmed.

Affirmed.

Whitfield, P. J., and Terrell, J., concur. Tatlok, C. J., and Ellis and Browne, J. J., concur in the opinion.