73 Fla. 819 | Fla. | 1917
J.—The bill of complaint herein alleges in effect that on November 15, 1915, the receiver of the bank obtained a judgment against James T. Harley for $5,032.24 principal and interest, and $250.00 attorney fees on promissory notes given by Harley to the bank; that on December 1, 1915, execution issued on the judgment and was levied on the real and personal property of the defendant Harley; that the property was advertised to be sold on January 3, 1916; that on December 24, 1915*, Harley delivered to the' sheriff an affidavit that he is the head of a family and resides on a portion of the land levied upon and claimed his homestead exemption therein; that on December 28, 1915, the defendánt Harley filed with the sheriff what purported to be a true, and correct inventory of his personal property and claimed an ex
On an appeal taken by the complainant the question to be determined is whether the right to homesteád exemptions is' superior to or subject to the liens impressed upon the property by the rendition of the judgment and the. levy of the execution issued thereon before the acquisition of the right to homestead ’exemptions in the property.
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 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,'
Provision is made by statute for setting apart homestead exemptions when improperly levied upon. Sec. 2520 et seq. Gen. Stats, of 1906; Chap. 6927 Acts of 1915; Christopher v. Bowden, Sheriff, 17 Fla. 603; McMichael v. Grady, 34 Fla. 219, 15 South. Rep. 765; MecMichael v. Eckman, 26 Fla. 43, 7 South. Rep. 365.
Organic and statutory provisions relating to homestead exemptions should be liberally construed in the interest of the family home. But the law should not be so applied as to malee it an instrument of fraud or imposition upon* creditors. Milton v. Milton, 63 Fla. 533, 58 South. Rep. 718.
The provisions o-f the homestead laws should be carried out in the liberal and beneficent spirit in which they were enacted, but at the same time great care should be taken to prevent-them from becoming the. instruments of fraud. Drucker v. Rosenstein, 19 Fla. 191; Jetton Lumber Co. v. Hall, 67 Fla. 61, 64 South. Rep. 440.
Section 1600-General Statutes, 1906, provides that: “Every judgment at law (and decree in equity) which
An execution issued on a judgment, called a writ of fieri facias, is a lien upon the personal property of the defendant in execution from the time such writ shall be delivered to tire sheriff. Love v. Williams, 4 Fla. 126; Kimball v. Jenkins, 11 Fla. 111, text 123.
A statutory lien is as binding as a mortgage and has the same capacity to hold land, so long as the statute preserves its force. Rankin v. Scott, 12 Wheat. (U. S.) 177. There can be no difference in principle between a mortgage and a statutory lien. The one is as binding as the other. Andrews v. Doe ex dem. Wilkes, 6 How. (Miss.) 554, text 568; Moseley v. Edwards, 2 Fla. 429, text 439; Kimball v. Jenkins, supra.
Section 1 of Article X óf the Constitution confers a right that stated property “owned by the head of a family residing in this State” “shall be exempt from forced sale under process of any court” and from the lien of any “judgment or decree or execution” except “for taxes or assessments, or for the payment of obligations contracted for the purchase of said property, or for the erection or repair of improvements on the real estate exempted, or for house, field or other labor performed on the same.” The right thus conferred is to “exemptions” of property from forced sales and liens. Under section 2 of the Article the “exemptions” “shall inure to tire widow and h^irs of the' party entitled to such exemption, and shall apply to all debts, except as specifed in” section one.
The right to' the “exemptions” may accrue after the property is acquired, by the owner becoming “the head of a family residing in this State.” The right.to the “exr emptions” may be lost after if accrues by the owner ceas
A right to the “exemptions” may be relinquished by “the holder, of a homestead” by a “morgtage duly executed by himself or herself, and by husband and wife, if such relation exists.” Patterson v. Taylor, 15 Fla. 336; Walker v. Redding, 40 Fla. 124, 23 South. Rep. 565; Hart v. Sanderson, 18 Fla. 103; Shear v. Robinson, 18 Fla. 379. And ihe “homestead SO' exempted” may be alienated “by deed or mortgage duly executed.” Sec. 4, Art. X. A conveyance or mortgage of the homestead real estate by the husband alone when he has á wife, is void. Thomas v. Craft, 55 Fla. 842, 46 South. Rep. 594; High v. Jasper Mfg. Co., 57 Fla. 437, 49 South. Rep. 156.
The homestead real estate may be devised “if the holder be without” children. Sec. 4, Art. X; Caro v. Caro, 45 Fla. 203, 34 South. Rep. 309. But since the enactment of Chapter 4730, Acts of 1899, the homestead real estate cannot be devised if there is a wife of the holder of the homestead. Thomas v. Williamson, 51 Fla. 332, 40 South. Rep. 831; Saxon v. Rawls, 51 Fla. 555, 41 South. Rep. 594. A devise of homestead real estate where there are children, is void. Griffith v. Griffith, 59 Fla. 512, 52 South. Rep. 609.
Prior,to Chapter 4730 “the holder of a homestead” if without children could devise the homestead real estate subject to the dower rights of the widow if there be one.
The Constitution in Section 4 Article X recognizes the right to place a mortgage lien upon “exempted property,” and a judicial sale to enforce the mortgage is not a “forced sale” forbidden by the Constitution. Patterson v. Taylor, 15 Fla. 336; Hart v. Sanderson, 18 Fla. 103.
Where, as. in this case, judgment and execution liens upon a debtor’s property are obtained by a creditor in enforcing payment of the debtor’s promissory notes at a time when the debtor was not the head of a family and consequently not entitled to homestead exemptions, the debtor upon subsequently becoming the head of a family by marriage, is not entitled to homestead exemptions in the property' on which the statutory judgment and execution liens already exist, to the exclusion of the pre-existing liens. The Constitution forbids judgment and execution liens only on “exempted property,” and the property of a person who is not the head of a family is not “exempted property” under the Constitution. The liens having attached when the property was not exempt, the mere change of the status of the owner of the property to that of “the head of a family,” does not destroy the judgment and execution liens of a bona fide creditor for value any more than such change of status would destroy a mortgage lien or an interest in the property that had previously passed to another. The exemptions “from forced
The “forced sale” forbidden by the Constitution is of “exempted property,” and not of property that was subject to the vested rights of others at the time the right accrued to- the claimant of a homestead exemption.
It is generally held that homestead exemptions cannot be enforced as against valid liens which have attached to the premises before they are impressed with the homestead character, whether such liens are obtained by contract or by operation of law. 15 Am. & Eng. Ency. Law, (2nd ed.) 617; 13 R. C. L. p. 615.
The judgment and execution liens constitute an inter
As the loans may have been made to Harley on the faith of his property not then subject to homestead exemptions, and as judgment and execution liens in enforcing a collection of the loans were by the statute put upon the property before he acquired the status of “the head of a family,” it would be an imposition on the creditor bank and deprive it of a vested right to permit the debtor to avoid the payment of the loans made to him, by entering into the marriage relation and on so doing to exempt to him property on which liens existed prior to the marriage. This would be unjust liberality to homestead claimants and an imposition on creditors not contemplated or permitted by the quoted organic provision.
In Milton v. Milton, 63 Fla. 533, 58 South. Rep. 718, the judgment lien had not attached to the lands of the debtor’s ancestor, and as his indebtedness was not contracted with reference to his ancestor’s property, he was permitted to claim exemptions in lands he entered upon with his family and occupied as one of the ancestor’s.heirs soon after the ancestor’s death and before the lands were divided among the co-parceners. Under these
The sale of property pursuant to. judgment and execution liens obtained prior to the acquisition of a right to homestead exemptions in the property, is not a “forced sale” of “exempted property” forbidden by the Constitution.
The decree is reversed.
Browne, C. J. and Taylor, Shackleford and Ellis, JJ., concur.
The holding that the judgment and execution liens of the creditor of the homestead claimant constitute an interest in the debtor’s property, is not contrary to previous decisions. In Jordan v. Sayre, 29 Fla. 100, 10 South. Rep. 823, cited in the petition for rehear
Rehearing denied.