55 Fla. 842 | Fla. | 1908
—This is an appeal from: a decree denying’ partition of real estate. The f-acts in -brief are: James M. Thomas ow-ned and occupied a homestead in real estate which he undertook by deed executed by him
It is urged here for the appellants that the decree denying partition is erroneous because (i) the deed of conveyance of the homestead by James M. Thomas alone to his wife and two adopted children was not an alienation of the land and' the constitutional requirement that the wife join in the conveyance does not apply; (2) the deed from James M. Thomas raised a trust in favor of complainants that binds Julia F. Craft; and, (3) the
In Article X of the constitution of 1885, it is provided : ,
“Section 1. 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.”
“Section '2. The exemptions provided for -in section one shall inure to the widow and heirs of the party entitled to such exemption, and shall apply to all debts, except as specified in said section.”
“Section 4. Nbthing in this -article shall' be construed to prevent the holder of a homestead from alienating his -or her homestead so exempted by deed or mortgage duly executed by himself or 'herself, and by husband and wife, if -such relation exists.”
That the land in -controversy was the homestead of James M. Thomas when he alone executed a deed purporting to convey it to his wife and two adopted children
The -constitutional exemptions apply only to property owned by the head of the family. The exemptions are for the benefit of the family, and inure to- the widow and heirs of {he party entitled to the- 'exemption. The methods prescribed for the alienation of the exempted real estate are restrictions designed for the protection of all the beneficiaries of the exemption. Therefore the prescribed methods of alienation are as essential when the homestead real estate is -alienated to- members of the family -as to others.
The right of the owner to voluntarily alienate the property real oM personal to 'which the constitutional exemption attaches is not given by the constitution. This right is inherent as -an incident to or an attribute of the ownership of the property. But the constitution provides : “that the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists;”' and that “nothing in this Article shall be construed to prevent the holder of -a homestead from alienating his or her homestead so exempted by deed or mortgage -duly executed by himself or herself, and by husband and- wife if suc-h- relation exists.” The law prescribes how deeds of conveyance and mortgages of real estate shall be duly executed by husband and wife.
. The 'words “alienable” and “alienating” are used in the quoted sections of the constitution in the sense of conveying or transferring the legal title, o-r any beneficial interest in, the exempt homestead real estate during the life of -its owner. The method by which the homestead shall be alienated, i. e. conveyed or transferred, being
I The deed, therefore, executed solely by James M. Thomas, the husband, by which he attempted to convey the legal title to his homestead real estate was a nullity, and effected nothing, and conferred upon the grantees named therein no right, title or interest whatever in the property. See McDonald v. Sanford, 88 Miss. 633, 41 South. Rep. 369. 9 Am. & Eng. Anno Cases 1, and authorities cited.
The decree is ‘affirmed.
Shackleford, C. J., and Cockrell, J., concur;
Taylor, Hocker and Parkhill, JJ., concur in the opinion.