JOHN BIGELOW, AND FRANK C. BIGELOW, HIS WIFE; JOHN BIGELOW, AS ADMINISTRATOR OF THE ESTATE OF MARGARET A. HILL, DECEASED; JOHN T. HILL AND HELEN BIGELOW MALCOLM,
v.
DUDLEY C. DUNPHE, AS EXECUTOR OF THE LAST WILL AND TESTAMENT OF MARGARET C. DUNPHE, DECEASED
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The Florida Supreme Court clarifies that a married woman who is the head of a family and owns homestead property cannot convey or mortgage that property without her husband's joinder, even if she is a 'free dealer' under statute, as required by the Florida Constitution's homestead provisions.
A married woman who is the head of a family cannot legally convey or mortgage homestead property without her husband's joinder, regardless of whether she is a 'free dealer' under statute. Article XI of the Constitution does not modify or affect the homestead conveyance and mortgage requirements of Article X.
“The Constitution contemplates that a married woman may be the head of a family residing in this State even though the husband is living, if the wife is in fact the head of the family; and as such head of a family she may have homestead exemption rights, under Section 1, Article X, of the Florida Constitution, in real estate owned by her upon which she lives with her husband and her children as their family home”
Establishes that a married woman can be the head of a family and have homestead rights
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On Petition for Rehearing
The Constitution contemplates that a married woman may be the head of a family residing in this State even though the husband is living, if the wife is in fact the head of the family; and as such head of a family she may have homestead exemption rights, under Section 1, Article X, of the Florida Constitution, in real estate owned by her upon which she lives with her husband and her children as their family home; and though she owns the home place and is a “free dealer” under the statute, she cannot legally convey or mortgage such home place unless her husband joins her in the execution of such conveyance or mortgage as required by Section 4, Article X, Constitution, if she is, when the conveyance or mortgage is executed by her, the head of the family residing with the family on such home place in this State. Husband and wife *332may constitute a family under the homestead article of the Constitution. If there be a presumption of fact that the husband if living is the head of the family, such presumption does not relieve a mortgagee or grantee of the duty to ascertain the rights of those occupying real estate that is being conveyed or mortgaged.
Article XI of the Constitution does not modify or affect the operation' of the provisions of Article X of the Constitution regulating the execution of conveyances and mortgages of homestead real estate, whether the wife or the husband is the head of the family and the owner of the homestead real estate.
In Lerch v. Barnes, 61 Fla. 672, 54 So. 763, a conveyance of real estate, the separate property of the wife by her deed not joined in' by the husband, did not involve the conveyance or mortgage of a homestead owned by the wife who was the head of a family living on the property at the time of the conveyance. In that case the wife was a “free dealer,” and conveyed her separate real estate by her deed alone for her own purposes.
■Motion to file granted and rehearing denied.
Terrell, C. J., Buford, Chapman and Thomas, J. J., concur.
Justice Brown not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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Citator
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George v. Reed and his wife, 145 So. 2d 858 (Fla. 1961)…78, 136 So. 242, 247. . The use of this descriptive adjective is hereinafter explained. . Jackson v. Jackson, 90 Fla. 563, 107 So. 255. . See note 2 on page 865. . See note 4 on page 865. . Bigelow v. Dunphe, 143 Fla. 603, 197 So. 328. See also 144 Fla. 330, 198 So. 13. . Every dictionary and reference book to which we have access gives “void”, “null”, “of no legal force”, “null and void” as synonyms for “invalid” when such word is used in its legal sense. . For the author’s view on this subject see…
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Anderson v. Anderson, 44 So.2d 652 (Fla. 1950)…aid homestead was all the while being used for the sole benefit of the same family as before the divorce, and the claim against the home place was prosecuted by an outside creditor. A married woman may be the head of a family. See Bigelow v. Dunphe, 144 Fla. 330, 198 So. 13, depending upon the facts and circumstances. Jones v. Federal Farm Mtg. Corp., 138 Fla. 65, 188 So. 804. And where the husband deserts his wife, leaving her in this state with dependent children she may constitute a head of a family. Jet…
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Waymon Solomon v. Davis, 100 So. 2d 177 (Fla. 1958)…person in charge.” Crosby and Miller, supra. The court below recognized at the outset a presumption that where married people live together in a common home, the husband is the head of the family. Bigelow v. Dunphe, 143 Fla. 603, 197 So. 328; Id., 144 Fla. 330, 198 So. 13. Cf. Frank v. Frank, Fla., 75 So. 2d 282; Ripley v. Ewell, Fla., 61 So. 2d 420; Sec. 708.03, Florida Statutes, F.S.A. In view of the widespread applicability of this principle throughout our law, there would be little doubt that in the c…
Authorities Cited
- Bigelow v. Dudley C. Dunphe, 143 Fla. 603 (Fla. 1940)
- Lerch v. Claudius H. Barnes, 61 Fla. 672 (Fla. 1911)