C. J. CLEMENTS, APPELLANT,
v.
R. A. HENDERSON, APPELLEE
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The Florida Supreme Court reversed an order sustaining a demurrer to a bill seeking to set aside realty as homestead, enjoin its sale under a judgment, and quiet title. The court held that equity courts are open for such relief, especially when the homestead status depends on facts in pais that are difficult to prove and render the property unsalable.
Yes, courts of equity are open for the purpose of granting such relief. The facts alleged in the bill, if proven, are sufficient to establish the homestead status and warrant equitable intervention.
“The facts alleged, however, are facts in pais, dependent for their proof upon ephemeral testimony and the complainant had a right to have those facts established by a binding decree as against this defendant.”
Establishes the basis for equitable intervention due to the nature of the proof required for homestead status.
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Per Curiam.
A bill was filed to have certain realty set aside as the homestead of the claimant, to enjoin a sale thereof under a common law judgment, and to quiet the title of the complainant as against the lien of the judgment. A demurrer to the bill was sustained, and this appeal is from the order sustaining the demurrer. . The demurrer points out no specific objection to the manner of pleading the facts relied on, but apparently rests upon the theory that the realty being a homestead the judgment constitutes no lien thereon.
We have no brief in support of the demurrer, and a reading of the bill discloses no lack of allegation going to make up a homestead under our constitution. The facts alleged, however, are facts in pais, dependent for their proof upon ephemeral testimony and the complain ant had a right to have those facts established by a binding decree as against this defendant. Moreover the bill shows without this aid the realty is unsalable.
That our courts of equity are open for the purpose of granting this relief, we think is firmly established. Milton v. Milton, 63 Fla. 533, 58 South. Rep. 718; Smith v. Gufford, 36 Fla. 481, 18 South. Rep. 717, 51 Am. St. Rep. 37; McMichael v. Grady, 34 Fla. 219, 15 South. Rep. 765.
Order reversed, with directions to overrule the demurrer. ,
Taylor, C. J., and Shackleford, Cockrell, Whitfield and Ellis, JJ., concur.
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City OF Miami v. ST. JOE Paper Co., 364 So. 2d 439 (Fla. 1978)…e word is used in the broader sense meaning “concerning” or “producing an effect upon”. In this broad sense, even a void instrument of record “affects” land titles by casting a cloud or doubt [*448] thereon. Clements v. Henderson, 1915, 70 Fla. 260, 70 So. 439; Brown v. Solary, 1896, 37 Fla. 102, 19 So. 161’.” 346 So. 2d at 1010. In this case it appeared that Wadsworth, Sr., died in 1930 possessed of homestead property and survived by his widow and four children. The statute governing the descent of home…
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E. E. Marshall de bonis non of the Estate of Mathew A. Marshall v. Hollywood, Inc., 224 So. 2d 743 (Fla. 4th DCA 1969)…g or altering”. The word is used in the broader sense meaning “concerning” or “producing an effect upon”. In this broad sense, even a void instrument of record “affects” land titles by casting a cloud or a doubt thereon. Clements v. Henderson, 1915, 70 Fla. 260, 70 So. 439; Brown v. Solary, 1896, 37 Fla. 102, 19 So. 161. All parts of an act should be read together in an effort to achieve a consistent whole. Ideal Farms Drainage District v. Certain Lands, 1944, 154 Fla. 554, 19 So. 2d 234. The interpretati…
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ITT Rayonier v. Wadsworth, 346 So. 2d 1004 (Fla. 1977)…’. The word is used in the broader sense meaning ‘concerning’ or ‘producing an effect upon’. In this broad sense, even a void instrument of record ‘affects’ land titles by casting a cloud or a doubt thereon. Clements v. Henderson, 1915, 70 Fla. 260, 70 So. 439; Brown v. Solary, 1896, 37 Fla. 102, 19 So. 161.” The Marshall decision was upheld in an opinion discharging a writ of certiorari in the cause, Marshall v. Hollywood, Inc., 236 So. 2d 114 (Fla.1970), in which this Court said at page 118: “The argu…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Milton v. Milton, 63 Fla. 533 (Fla. 1912)
- McMichael v. Grady, 34 Fla. 219 (Fla. 1894)
- Smith v. Aesop Gufford, 36 Fla. 481 (Fla. 1895)