I. DAVID BALDING, ALSO KNOWN AS IVOR DAVID BALDING, AND CLAUDE L. BALDING, HIS WIFE, APPELLANTS,
v.
BERNARD R. FLEISHER AND FRANCES H. FLEISHER, HIS WIFE, APPELLEES
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Property owners challenged a judicial sale of land held as tenants by the entireties, arguing the sale was void because it was based on a judgment against only one spouse that had been previously declared null and void for lack of personal jurisdiction. The court reversed the dismissal, holding that a judicial sale under a void judgment confers no title and that property held by the entireties cannot satisfy the individual judgment debts of one tenant.
The judicial sale was a nullity because it was founded on a void judgment, and property held as tenants by the entireties cannot be made available to satisfy the individual judgment debts of one tenant. A judicial sale under a void decree confers no title on the purchaser, and the appellees as purchasers are subject to the doctrine of caveat emptor, acquiring only such interest as the judgment debtor had.
[1] A judicial sale conducted pursuant to a void judgment is a nullity and confers no title on the purchaser.
[2] Failure to effectuate proper service on a defendant renders a default judgment void and subject to vacation at any time.
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Join FLexlaw to unlock all legal intelligence“property held as a tenancy by the entireties cannot be made available to answer for the judgment debts of one of the tenants individually”
Establishes the fundamental principle that tenancy by the entireties property is protected from individual tenant judgment debts
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Join FLexlaw to unlock all legal intelligenceAn attorney obtained a judgment against the appellant husband for legal services. Subsequently, the husband filed a Chapter XI bankruptcy in New York,…
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Appellants were sued in Florida by an attorney for legal services rendered and the attorney obtained a judgment against them. Subsequent to final judgment the appellant husband filed a Chapter XI proceeding in the Bankruptcy Court in New York. A restraining order was issued enjoining all parties from execution on the property of the appellant husband. One year later, while the restraining order was still in effect, the judgment creditor directed the sheriff to levy upon property owned by the appellants in Florida and held by them as tenants by the entireties. The property was duly advertised and sold to the appellees herein at a judicial sale and their title was confirmed. Subsequently, *884the appellant husband challenged the judgment entered against him due to an invalid service of process. The trial court held the judgment entered against the husband to be null and void and this court affirmed that finding. Kaplan v. Balding, Fla.App.1972, 265 So.2d 752. Appellants, thereupon, brought this action to set aside or vacate the judicial sale on two grounds: (1) that the judicial sale was a nullity since it was based on a void judgment; and (2) since it was held in violation of the Federal court restraining order. The lower court dismissed appellants’ amended complaint with prejudice. We reverse.
Appellants allege the same two grounds relied on below as grounds for reversal. Appellees have cross-appealed the trial judge’s denial of their motion to strike the complaint as a sham. Our determination of appellants’ first point makes consideration of their second point unnecessary, as well as consideration of appellees’ point on cross-appeal.
Appellees argue that the judgment entered against the appellant husband herein was only voidable and not void due to the failure of the court to obtain jurisdiction over him by proper service. Initially, we note that such an argument cannot be properly made in the case sub judice since our prior decision in the case of Kaplan v. Balding, supra, affirmed a lower court order holding the judgment against appellant husband to be “null and void”. Moreover, we have previously held that failure to effectuate proper service on a defendant, and a default judgment entered thereon, is a void judgment and may be set aside or vacated at any time. Outler v. Berman, Fla.App. 1970, 234 So.2d 724.
Once it is established that the judgment rendered against the appellant husband was void, the only valid judgment remaining was against the appellant wife. It is well established in Florida law that property held as a tenancy by the entireties cannot be made available to answer for the judgment debts of one of the tenants individually. France v. Hart, Fla.App.1964, 170 So.2d 52; Crawford v. United States Fidelity & Guaranty Co., Fla.App.1962, 139 So.2d 500; Winters v. Parks, Fla.1956, 91 So.2d 649; Meyer v. Faust, Fla.1955, 83 So.2d 847; Hunt v. Covington, 145 Fla. 706, 200 So. 76.
Appellees, as purchasers of the property at a judicial sale, are generally subject to the doctrine of caveat emptor. As such, the purchaser at a sheriff’s sale acquires only just such interest as the debt- or may have in the land. Bradley v. Forbs, 116 Fla. 350, 156 So. 716; Gracy v. Fielding, 71 Fla. 1, 70 So. 625. As was previously noted, the interest of the judgment debtor herein, the appellant wife, was an estate by the entireties and not capable of being the object of satisfaction for the debt of one of the tenants alone. Thus, the interest of the judgment debtor could not pass by the sale. Moreover, a judicial sale made under a void decree, as where there are fatal jurisdictional defects, confers no title on the purchaser at the sale. 50 C.J.S. Judicial Sales § 41; 47 Am.Jur. 2d, Judicial Sales § 261.
Therefore, the order of the trial judge, dismissing appellants’ amended complaint to set aside the sheriff’s sale with prejudice was erroneous and must be reversed. Accordingly, the order dismissing appellants’ complaint with prejudice is hereby reversed and remanded with directions to reinstate the cause and hold such further proceedings as are necessary, in conformity with this opinion. The denial by the trial judge of appellees’ motion to strike is hereby affirmed.
Affirmed in part and reversed in part and remanded with directions.
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Bess v. Eagle Cap., Inc., 704 So. 2d 621 (Fla. 4th DCA 1997)…om trial court’s denial of motion to set aside judgment and sheriffs sale); Gibson v. Sampson, 353 So. 2d 609 (Fla. 4th DCA 1977)(appeal from dismissal of husband’s fourth amended complaint seeking to set aside a sheriffs sale); Balding v. Fleisher, 279 So. 2d 883 (Fla. 3d DCA)(appellants brought separate action to set aside sheriffs sale), cert. denied, 285 So. 2d 20 (Fla.1973); Ziemba v. Scott, 224 So. 2d 451 (Fla. 4th DCA 1969)(appeal from trial court’s denial of motion to set aside sheriffs sale). Therefo…
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Coney v. First State Bank OF Miami, 405 So. 2d 257 (Fla. 3d DCA 1981)…record open to Abbassi’s inspection, and his failure to acquire knowledge of the extent of Lazier’s title and interest makes him subject to the doctrine of caveat emptor. Lindsley v. Phare, 115 Fla. 454, 155 So. 812 (Fla.1934); Balding v. Fleisher, 279 So. 2d 883 (Fla. 3d DCA 1973). Accord, Atod, Inc. v. Coleman, 214 So. 2d 769 (Fla. 3d DCA 1968). If, on the other hand, because, as the Gonzalezes claim, the effect of the Division recognizing Abbassi’s license as freely renewable and transferable without rega…
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Ellis Sarasota Bank & Tr. Co. v. Nevins, 409 So. 2d 178 (Fla. 2d DCA 1982)…e judgment debts of one of’ the tenants individually. Meyer v. Faust, 83 So. 2d 847 (Fla.1955); Hunt v. Covington, 145 Fla. 706, 200 So. 76 (Fla.1941); Art Advertising Co. v. Associated Press, 340 So. 2d 1291 (Fla. 2d DCA 1977); Balding v. Fleisher, 279 So. 2d 883 (Fla. 3d DCA 1973); Kornberg v. Krupka, 118 So. 2d 790 (Fla. 3d DCA 1960). Here, the record is silent as to whether appellant’s motion to implead appellee’s wife was ruled on. Accordingly, we reverse the order of the trial court and remand with ins…
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 (11 total)
- Gracy v. Fielding, 71 Fla. 1 (Fla. 1916)
- Hunt v. Mrs. Nannie L. Covington, 145 Fla. 706 (Fla. 1941)
- Ila Winters v. Parks, 91 So. 2d 649 (Fla. 1956)
- Hedwig Meyer v. Faust, 83 So. 2d 847 (Fla. 1955)
- Bradley v. Forbs, 116 Fla. 350 (Fla. 1934)
- Crawford v. United States Fid. & Guar. Co., 139 So. 2d 500 (Fla. 1st DCA 1962)
- Outler v. Hyman Berman, 234 So. 2d 724 (Fla. 3d DCA 1970)
- Logan v. Wilson Cypress Co., 116 Fla. 350 (Fla. 1934)
- France v. Joe Hart also known as Herman Josephart and as Joseph Hart Bella Hart, 170 So. 2d 52 (Fla. 3d DCA 1964)
- Rogers v. State, 170 So. 2d 52 (Fla. 1st DCA 1964)