No. GG-428 | Fla. Dist. Ct. App. | Feb 15, 1978
Lead Opinion
By summary judgment the trial court discharged the appellee wives as parties defendant to appellants’ action on the covenants of appellees and their husbands as grantors of a statutory warranty deed given December 23, 1973, three months after the inchoate right of dower in married women was abolished. Chapter 73-107, Laws of Florida. The trial court’s decision was predicated on unstated findings that the appellee wives executed the deed only to release any dower rights that may previously have vested. Reserving the question of whether the wives’ covenants may be reformed or rescinded for a unilateral mistake not amounting to a breach of legal duty, and for which the appellants should not profit, Crosby v. Andrews, 61 Fla. 554" court="Fla." date_filed="1911-01-15" href="https://app.midpage.ai/document/crosby-v-andrews-4917771?utm_source=webapp" opinion_id="4917771">61 Fla. 554, 55 So. 57 (1911); Wicker v. Board of Pub. Instr. of Dade County, 106 So. 2d 550" court="Fla." date_filed="1958-11-12" href="https://app.midpage.ai/document/wicker-v-board-of-public-instruction-of-dade-cty-1735758?utm_source=webapp" opinion_id="1735758">106 So.2d 550 (Fla.1958), or for other reasons, we must agree with appellants that the record contains no evidence establishing that the wives were requested to join in the deed only to release any possibly vested dower rights. The record therefore does not dispel all factual
REVERSED.
Dissenting Opinion
dissenting:
There is no issue of material fact here. The sole question is one of law, to wit: Are the wives liable to the immediate grantees on covenants in a deed to husbands’ property which the wives executed gratuitously at the request of the husbands’ attorney.
The wives had no title to the property, and there was no misrepresentation as to that fact. All parties knew the wives had no title, as evidenced by the wives not being party to either the contract for sale, the promissory note, the purchase money mortgage or to the collateral agreement. The last three instruments were executed the same day as the deed. There was no evidence of an independent contract of warranty between the wives and the grantees. The sole purpose alleged for the wives’ execution of the deed was relinquishment of dower.
Under these facts, the able trial judge correctly entered summary judgment in favor of the wives. As between the immediate parties to the transaction, and in the absence of misrepresentation, the wives’ gratuitous execution of a warranty deed to their husbands’ property does not create an independent obligation on the part of the wives, or render them liable oh covenants of warranty.
I would affirm the judgment below.