ANGELA M. ANDERSON, APPELLANT,
v.
HERBERT C. ANDERSON, APPELLEE
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In this divorce case, the Florida District Court of Appeal reversed the trial court's award of sole mortgagee status to the husband on a purchase money mortgage that was taken in both parties' names. The court held that taking back a mortgage payable to both spouses raises a presumption of a gift of an interest to the wife that cannot be overcome without clear and unequivocal evidence.
The court reversed, holding that a purchase money mortgage taken in the names of both parties raises a presumption of a gift of an interest to the wife that can only be overcome by clear, positive, and unequivocal evidence. The husband failed to meet this burden.
“The taking back of a purchase money mortgage payable to both parties as the result of a sale by the appellee raised a presumption of a gift of an interest therein to the appellant which could only be overcome by a clear, positive and unequivocal showing that no gift was intended.”
Establishes the legal standard: a presumption of gift arises when a purchase money mortgage names both parties, rebuttable only by clear evidence of no gift intent
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Join FLexlaw to unlock all legal intelligenceIn 1955, the appellee received property as a gift from his father, encumbered by a $30,000 mortgage that both parties jointly assumed and satisfied. I…
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Appellant wife seeks review of that portion of a final decree of divorce which grants the appellee’s counterclaim, declares him to be the sole mortgagee on a note and mortgage encumbering certain real property, and directs the mortgagor to make all future payments thereon to the appellee. We reverse.
In 1955, the property in question was conveyed to the appellee by his father as a gift. At the time it was encumbered by a $30,000 mortgage which was assumed jointly by the appellant and appellee. In due course, this obligation was fully satisfied by checks drawn upon a New York bank and signed by the appellant. At the trial, appellant contended this was a joint account and appellee contended it was his personal income property upon which the appellant was authorized to draw checks for certain specific purposes. The chancellor by his final decree found in effect that it was a joint account. The property was sold in 1959 to P. T. Paderewski who executed a note for $71,000 secured by a purchase money mortgage payable to both parties as mortgagees. All payments made by the mortgagor prior to the institution of this suit were by checks payable to both parties and deposited in the New York bank account. On March 6, 1961, the appellant brought suit seeking, inter alia, a divorce and a division of the parties’ jointly owned property. Appellee answered and counterclaimed seeking reformation of the note and mortgage to make him the sole mortgagee. After trial, the chancellor entered the final decree appealed granting the appellant a divorce but ruling in favor of the appellee on his counterclaim.
Basically, the appellant contends that the chancellor erred in awarding the appel-lee sole ownership of the note and mortgage. We agree.
The note and mortgage carried the appellant and appellee as joint payees and mortgagees. The taking back of a purchase money mortgage payable to both parties as the result of a sale by the ap-pellee raised a presumption of a gift of an interest therein to the appellant which could only be overcome by a clear, positive and unequivocal showing that no gift was intended. Lauderdale v. Lauderdale, Fla.App.1957, 96 So.2d 663; see also Powell v. Metz, Fla.1952, 55 So.2d 915; Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727. On the record before us such a showing was not made.
Accordingly, that portion of the final decree appealed is reversed, and the cause is remanded for the entry of an amended decree not inconsistent herewith.
Reversed and remanded with directions.
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Olsen v. Sydney Olsen, 195 So. 2d 864 (Fla. 3d DCA 1967)…sband, and the husband offered no evidence in regard to the transaction. As a general proposition, a transfer from a husband to a wife is presumed to be a gift. See: Strauss v. Strauss, 148 Fla. 23, 3 So. 2d 727; Anderson v. Anderson, Fla.App.1963, 153 So. 2d 24; Witlin v. Witlin, Fla.App.1963, 153 So. 2d 70; 17 Fla.Jur., Husband and Wife, § 43. The converse of this, however, is not true. A transfer from a wife to a husband of her separate property is not presumed to be a gift, and the burden is on the husb…
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Anderson v. Anderson, 180 So. 2d 360 (Fla. 3d DCA 1965)…on of child support payments; and also the chancellor’s award of $1,000.00 to the wife as counsel fees for legal services rendered during the course of certi-orari proceedings before the Supreme Court of Florida. (Anderson v. Anderson, Fla.App.1964, 153 So. 2d 24, cert. discharged Fla.1964, 164 So. 2d 3). The appellee-wife cross assigns as error the denial of her petition for an increase in alimony and child support. On January 10, 1962 a final decree of divorce was entered awarding the wife alimony of $400…1 / 2
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Witlin v. Witlin, 153 So. 2d 70 (Fla. 3d DCA 1963)…the joint names of the parties, there arose a presumption of a gift of an interest therein to the appellant which could only be overcome by a clear, positive and unequivocal showing that no gift was intended. See Anderson v. Anderson, Fla.App.1963, 153 So. 2d 24; Lauderdale v. Lauderdale, Fla.App.1957, 96 So. 2d 663; Powell v. Metz, Fla.1952, 55 So. 2d 915; Strauss v. Strauss, 148 Fla. 23, 3 So. 2d 727. We have examined the record and conclude that no such showing was made. Therefore, the appellant is veste…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strauss v. Strauss, 148 Fla. 23 (Fla. 1941)
- Lauderdale v. Lauderdale, 96 So. 2d 663 (Fla. 3d DCA 1957)
- Powell v. Metz, 55 So.2d 915 (Fla. 1952)