Bowers v. MozingoBowers v. Mozingo
The appellant seeks review of a final judgment in a declaratory judgment action, wherein the trial judge held that the defendant‘s (appellee herein) recorded judgment lien was imposed upon the interest of the appellant in certain real property and that, upon sale, the property would pass subject to the lien.
On appeal, it is the contention of the appellant that the trial court erred because the facts of the case clearly show he had a sufficient possessory interest in the subject property to entitle him to protection of the homestead exemption provisions of Article X, Section 1, Constitution of the State of Florida (1885)1 prior to the appellee obtaining her judgment lien. On the other hand, the appellee relies on Article X, Section 7, Constitution of the State of Florida (1885)2, pertaining to homestead for purposes of ad valorem taxation, and contends that the appellant did not file for homestead exemption for taxation until 1965, subsequent to the recordation of the judgment lien and, therefore, her judgment lien is paramount. Secondly, she contends that two people cannot claim the same homestead. We cannot agree with either position for the following reasons.
This case is governed by Article X, Section 1, Constitution of the State of Florida (1885), which exempts a homestead from forced sale and provides that no judgment or execution shall be a lien thereon. Clearly, this is a different thing than homestead exemption, as defined for tax purposes. Doing v. Riley, 176 F.2d 449 (5th Cir.1949). Therefore, the appellee‘s reliance on Article X, Section 7, Constitution of the State of Florida (1885) is misplaced.
These facts clearly show that the appellant did not have ownership in the property prior to recordation of the judgment lien, which is necessary to acquisition of the homestead right. Hinson v. Booth, 39 Fla. 333, 22 So. 687 (1897). Thus, the appellant could not legally have a right of homestead based on a mere possessory interest and his argument must fail. The judgment lien could not attach to the property in question until it was owned by the appellant. First National Bank v. Peel, 107 Fla. 413, 145 So. 177 (1933); Cheves v. First National Bank, 79 Fla. 34, 83 So. 870 (1919). We thus find both the claimed homestead right (if proven) and the judgment lien would attach to the property simultaneously upon the appellant‘s acquiring ownership thereof. This being the case, the rule accords priority to the homestead right, where the homestead right and the lien attach simultaneously, as in the case of purchase or inheritance of land by a judgment debtor. Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912); Pasco v. Harley, 73 Fla. 819, 75 So. 30 (1917); Quigley v. Kennedy & Ely Ins., Inc., 207 So.2d 431 (Fla. 1968); Aetna Insurance Company v. LaGasse, 223 So.2d 727 (Fla. 1969).
In the final judgment appealed herein, the trial judge did not make a determination as to whether or not the appellant was head of the family at the time he acquired ownership of the property. This issue must be resolved in order to settle priority of claims in the instant case.
Therefore, the order appealed is hereby reversed, and the cause remanded to the trial court for a determination as to whether or not the appellant met the necessary criteria to claim a homestead right under Article X, Section 1, Constitution of the State of Florida (1885) at the time he acquired ownership of the subject property.
Reversed and remanded, with directions.