Read v. Leitner

| Fla. | Oct 19, 1920

Whitfield, J.

It appears that P. R. Read owned in DeSoto County, Florida, not exceeding 160 acres of land not within the limits of any incorporated city or town, upon which he lived with his family, consisting’of a wife and children; that he moved with his family to the city of Arcadia, in DeSoto County, where he remained some time engaged in business, his children attending school hr the city; that subsequently he moved with his family back to the homestead in the county; that later he again moved with his family to the same city where for several years he engaged in business and his children attended school; that during the latter period he voted in the city, but frequently visited the country place formerly occupied as his homestead and gave periodical attention to the upkeep of the place, which was occupied by a tenant, at least a portion of the time, during which period the house that had been occupied by the family burned and another house was erected on the place for residence purposes and so occupied; that during the time Read and his family were living in the city in a house owned by his wife, judgments were obtained against him, but before executions under the judgments were levied on the said country place and before a sale of the place under the judgments and executions, Read, Avith his family, moved again to and occupied as his home the country property that had been his place of actual residence and homestead place, he testifying that he never' intended to permanently abandon the place as his home.

The court adjudged that the said country place had been abandoned as the homestead and that a sale of the place under the executions should proceed. An appeal was taken.

The Constitution contains the following provision:

“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, 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. But no property shall be exempt from sale 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 exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner; and no judgment or decree or execution shall be a lien upon exempted property except as provided in this article.” Sec. 1, Article X, Constitution of 1885.

It does not appear that the judgments against Read were on account of the homestead “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,” therefore if the homestead rights in the country property had not been abandoned by the absence of the family therefrom under the circumstances above stated, the judgments obtained against Bead while he actually resided in the city created no liens on the property.

The homestead exemption rights were impressed upon the property before the judgments were obtained against the owner who is the head of a family residing in this State; and before an intentional abandonment of the duly acquired homestead rights in the property clearly appears, the owner with his family again occupy the property, claiming that it has remained and it is their home place, before it is proceeded against for sale under executions upon the judgments.

The homestead exemption rights in the property having-been duly acquired before the judgments were rendered, unless an intentional and actual abandonment, of the exemption rights clearly appear, the property is not subject to liens under the judgments; and when the owner with his family after an absence for business and school purposes again occupy the property, claiming that he has not abandoned his homestead rights therein, a forced sale of the property under executions issued on the judgments is a violation of the organic homestead rights.

The purpose of the homestead law is to secure from forced judicial sale, except in particular instances, the owner’s interest or property right in a stated quantity of real estate occupied by the owner or his family as their home place,.or having occupied it still claim it as their homestead, though they temporarily reside at another place in the State for purposes of business, education, health or family comfort. The Constitution does not expressly require the owner' of a homestead or his family to occupy the home place that may be exempt from forced sale, but the word “homestead” implies occupancy as the home place, though having once in good faith been occupied ■ as the home place, it is not essential that the occupancy should be continuous, provided the intent to return to it as the homestead continues, and the absence therefrom is reasonably shown to be for the temporary benefit of the family. Having once occupied the place as a homestead, the period of absence and the use of the place must be consistent with a bona fide intent to return and with the purpose of the absence, all the relevant circumstances being evidentiary in determining each case on its merits. . Homestead laws should- be liberally applied in the interest of the family home; but the law should not be used to defraud creditors. See Clark v. Cox, 80 Fla., 85 South. Rep. 173.

Decree reversed.

Browne, C. J., and Taylor, Ellis and West, J. J., concur.