GENTILE BROTHERS, INC., A CORPORATION, APPELLANT,
v.
L. M. BRYAN, APPELLEE
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The Florida Supreme Court held that a mortgage on citrus fruit growing on homestead real estate does not constitute an alienation of the homestead requiring the joint consent of both husband and wife under the state constitution. The court distinguished between the real property (trees) and the annual fruit crop, classifying the latter as personal property (chattels) when produced through cultivation and care.
A mortgage given only upon a crop of citrus fruit growing on homestead real estate is not an alienation of the real estate within the constitutional meaning, and therefore the wife's consent is not required. When fruit is produced primarily through annual cultivation and personal attention, it may be classified as fructus industriales (personal property/chattels) rather than fructus naturales (part of the real estate).
“A mortgage given only upon a crop of oranges that is growing on the homestead real estate. is not in law an alienation of the "real estate", within the meaning and intent of the organic provision.”
Establishes the core holding that mortgaging fruit alone does not require spousal consent
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Join FLexlaw to unlock all legal intelligenceL. M. Bryan, without his wife's consent, executed a mortgage lien on all citrus fruit produced on trees growing on his homestead. The mortgage secured…
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L. M. Bryan, without the concurrence ■of his wife, executed a mortgage “lien upon all citrus fruit that may be produced on trees growing upon” described lands, the homestead of the mortgagor. The mortgage contains a personal covenant that Bryan “will at all times cultivate, spray for control of pests and diseases, and in all ways diligently care for and protect the citrus trees and the fruit growing thereon”; and the mortgage lien is to secure payment for “cash advances made, supplies furnished and services rendered” by the mortgagee, who agreed “to furnish for use on the trees such fertilizer, spray material and insecticides as shall be * necessary * for ■protecting fruit on all trees.” The question presented is whether under the constitution the wife must join the *234husband in mortgaging fruit growing upon the homestead.
The constitution provides that homestead “real estate shall not be alienable without the joint consent.of husband and wife, where that relation exists.”
A mortgage given only upon a crop of oranges that is growing on the homestead real estate. is not in law an alienation of the “real estate”, within the meaning and intent of the organic provision. Bearing orange trees are not planted annually, but unless the trees are properly cultivated, fertilized, sprayed and otherwise cared for, the annual fruit crop is indifferent and annually becomes less and less profitable. In Summerlin v. Orange Shores, Inc., 97 Fla. 996, 1004, 122 So. 508, 511, it is said:
‘ ‘ Since fruits of trees, such as peaches, apples, and other fruits, depend so much upon yearly cultivation and labor, including spraying for insects which attack and destroy the fruit, the yearly products of such -perennial plants and trees are considered as chattels while the tree itself is regarded as part of the realty.”
Even though trees are fructus naturales, the annual fruit of the trees, if mainly produced by cultivation, manuring and personal attention, may be fructus industriales. 8 Am. & Eng. Law (2nd. Ed.) 303. Where a mortgage is given upon a growing citrus fruit crop for supplies that are used in the proper cultivation of the trees to produce an annual fruit crop, the fruit when produced from such annual cultivation and attention may in law be classed as fructus industriales and not fructus naturales, when the mortgage gives no lien upon or interest in the land or the trees. See Purner v. Piercy, 40 Md. 212, 17 Am. Rep. 591; Vulicevitch v. Skinner, 77 Cal. 239, 19 Pac. R. 424 ; 22 R. C. L., p. 72; 1 Thompson on Real Property, section 110; 17 C. J. 380; Smock v. Smock, 37 Mo. App. 56. See also *235Richburg v. Rose, 53 Fla. 173, 44 So. 69, 74, 125 Am. St. Rep. 1061, 12 Am. Cas. 274. A mortgage given upon fruit produced by cultivation upon the homestead is not an alienation of the homestead real estate requiring the joint consent of the husband and wife.
Reversed.
Terrell and Davis, J.J., concur.
Buford, C.J., and Ellis and Brown, J.J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Emmie R. Adams v. Emmie R. Adams, 158 Fla. 173 (Fla. 1946)…rom that decree. Appellants contend that the citrus fruit or the proceeds of it was personal property and passed to the executors to be distributed under, the will. To support this contention they rely on Gentile Bros., Inc. v. Bryan, 101 Fla. 233, 133 So. 630. It is true that language in the latter case, if read in the abstract, may be so construed, but, if read in its environment, we do not think it permits this interpretation. The court was confronted with a mortgage lien given to secure supplies furni…
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Haines City Citrus Growers Ass'n v. Petteway, 107 Fla. 344 (Fla. 1932)…ack and injure the fruit, though products of perennial plants or trees, are chattels, while the trees themselves are part of the realty. Summerlin vs. Orange Shores, Inc., 97 Fla. 996, 122 So. 508. In Gentile Brothers, Inc., vs. Bryan, 101 Fla. 233, 133 So. 630, we held that a mortgage upon fruit [*347] produced by cultivation upon the homestead is not an alienation of the homestead real estate requiring the joint consent of the husband and wife. Article 10, Constitution of Florida. Though a husband has no…
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Plant City Agric. Credit Co. v. Pool, 103 Fla. 806 (Fla. 1931)…and recorded as provided by law for mortgages upon real estate. A mortgage almost identical in terms with the one before the court in this case has recently been considered by this Court in the case of Gentile Brothers, Inc. v. Bryan, 101 Fla. 233, 133 Sou. Rep. 630, where this court recognized the force of the statute and held that a mortgage is valid as to the fruit, when given upon a growing citrus fruit' crop for supplies used in the proper cultivation of the trees to produce an annual fruit crop, where it…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Summerlin v. Orange Shores, Inc., 97 Fla. 996 (Fla. 1929)
- Richbourg v. Rose, 53 Fla. 173 (Fla. 1907)
- McClusky v. Trussel (Miss. 1907)