MARION KAY E. KOPLON, PETITIONER,
v.
STANLEY SMITH ET AL., RESPONDENTS
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A deposit receipt for specific performance of a non-homestead property does not require two subscribing witnesses.
The owner failed to close on a property sale, and specific performance was decreed. The owner claimed the property was homestead, requiring two witnes…
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Petition for writ of certiorari asserts direct conflict of Radabaugh v. Ware, 241 So.2d 738 (Fla.App. 4th 1970), with the Third District’s holding here at 264 So.2d 73 (Fla.App.3d 1972). Fla.Const, art. V, § 4(2), F.S.A.
The question involved is the requirement of two subscribing witnesses on a deposit receipt in order to obtain specific performance conveying title. Fla.Stat. § 689.01, F.S.A.
The specific performance was decreed after appellant-owner’s failure to close. Testimony that the owner’s invalid mother inhabited the home as the predicate for a homestead was found insufficient (as was also the testimony denying receipt of the deposit). The property therefore stands as non-homestead. This is the distinction in the cases cited for conflict. In Radabaugh the property was homestead, requiring the two witnesses; here where the property is non-homestead there is no requirement under the statute for subscribing witnesses as a predicate for specific performance. Zimmerman v. Diedrich, 97 So.2d 120 (Fla.1957).
There is bare language in Radabatigh reciting the requirement of execution with the formalities of § 689.01 for specific performance which does not specifically mention in this isolated statement that it is limited to homestead property, citing Petersen v. Brotman, 100 So.2d 821 (Fla.App.2d 1958), which was an estate by entireties case. Radabaugh then proceeds, however, to hold correctly because it deals with homestead property as it states in the beginning of the opinion. The one sentence cannot be taken out of context to support the contention here for conflict which is not present and the petition for certiorari must accordingly be
Denied.
ROBERTS, C. J., and ERVIN, CARLTON and ADKINS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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The Wickes Corp. v. Moxley, 342 So. 2d 839 (Fla. 2d DCA 1977)…o doing we recognize that certain recent cases which hold that an unwitnessed contract to sell homestead real estate cannot be enforced lend some support to the contention that the old rule is still viable with respect to mortgages. Koplon v. Smith, 271 So. 2d 762 (Fla.1972); Carroll v. Dougherty, 302 So. 2d 439 (Fla.2d DCA 1974); Shedd v. Luke, 299 So. 2d 58 (Fla.1st DCA 1974); Radabaugh v. Ware, 241 So. 2d 738 (Fla.4th DCA 1970). Thus, it may be argued that since an unwit-nessed contract to sell non-homeste…
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Shedd v. Luke, 299 So. 2d 58 (Fla. 1st DCA 1974)…action of ejectment was then brought by appellants contending that the contract between the parties is void for want of two subscribing witnesses to'the contract, and appellants are entitled to possession of the property. In Koplon v. Smith, Fla., 271 So. 2d 762 (1972) the Supreme Court considered alleged conflict between the District Court of Appeal, Third District, decision there and Radabaugh v. Ware, Fla.App. (4th) 241 So. 2d 738, and ruled there was no conflict because in Radabaugh the property was hom…
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Dolan v. Allyn M. Wright, 289 So. 2d 777 (Fla. 4th DCA 1974)…’s signature on a contract for deed for the property, to support an action for specific performance. There is no requirement for two subscribing witnesses to a contract for deed except when homestead property is involved. Koplon v. Smith, Fla.1972, 271 So. 2d 762. Formerly under F.S. 708.07, F.S.A. (1969) 1 as interpreted in Kyle v. Kyle, Fla.App.1961, 128 So. 2d 427; Petersen v. Brotman, Fla.App.1958, 100 So. 2d 821 and Zimmerman v. Diedrich, Fla.1957, 97 So. 2d 120, it was necessary that two witnesses sub…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frieda Zimmerman v. Diedrich, 97 So. 2d 120 (Fla. 1957)
- Radabaugh v. Ware, 241 So. 2d 738 (Fla. 4th DCA 1970)
- Petersen v. Jonas J. Brotman, 100 So. 2d 821 (Fla. 2d DCA 1958)
- City OF Tampa v. Sperry, 100 So. 2d 821 (Fla. 2d DCA 1958)
- Fundador Rodriquez Rivera v. State, 264 So. 2d 73 (Fla. 2d DCA 1972)
- Koplon v. Smith, 264 So. 2d 73 (Fla. 3d DCA 1972)