LEANDER CARROLL AND JESSIE J. CARROLL, APPELLANTS,
v.
TOM K. DOUGHERTY AND VALENTINE S. DOUGHERTY, APPELLEES
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Florida court reversed summary judgment for specific performance of a homestead property contract because the contract was signed by only one witness initially, and the addition of a second witness by the broker created factual disputes precluding summary judgment.
A contract to convey homestead property must be signed in the presence of two witnesses to be specifically enforceable, and when the validity of the second witness signature is disputed, summary judgment is improper.
[1] When a homestead property contract's compliance with the two-witness requirement is disputed due to circumstances surrounding the addition of a second witness signature,…
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Join FLexlaw to unlock all legal intelligence“Agreements to convey homestead property must, to be specifically enforceable, be signed in the presence of two witnesses as required by Sec. 689.01, Fla. Stat. (1973)”
Court stating the legal requirement for homestead property contracts
Sellers agreed to convey homestead property to buyers. The contract was initially signed with only one witness present. When the purchaser noticed thi…
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MANN, Judge (Ret.)
“Agreements to convey homestead property must, to be specifically enforceable, be signed in the presence of two witnesses as required by Sec. 689.01,” Fla. Stat. (1973), Zimmerman v. Diedrich, Fla.1957, 97 So. 2d 120, 124. Accord, Koplon v. Smith, Fla. 1973, 271 So. 2d 762. The contract in this case was signed in the presence of only one witness. When the contract was presented to the purchaser, he noticed that it bore the signature of a single witness and called this to the attention of the broker. The broker took the contract and later returned it to the purchaser showing the signature of the broker’s wife as an additional witness. This action for specific performance was concluded in the plaintiffs’ favor by summary judgment in which the trial court thought it immaterial that the defendant claimed homestead status for the property, relying on Cox v. La Pota, Fla. 1954, 76 So. 2d 662. That case rests upon a finding of estoppel based on substantial competent evidence. In this case the facts and inferences to be drawn therefrom with respect to estoppel are controverted so as to preclude the entry of a summary judgment. Althouse v. Kenney, Fla.App.2d, 1966, 182 So. 2d 270.
Reversed and remanded.
HOBSON, A. C. J., and GRIMES, J., 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)…ich 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-homestead real estate may be specifically enforced,2 the…
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Leander Carroll and Jessie J. Carroll v. Dougherty, 355 So. 2d 843 (Fla. 2d DCA 1978)…n the estoppel theory set forth in Cox v. LaPota, 76 So. 2d 662 (Fla.1954). On appeal, this court reversed because there were genuine issues of fact and conflicting inferences to be drawn therefrom with respect to the estoppel. Carroll v. Dougherty, 302 So. 2d 439 (Fla. 2d DCA 1974). Upon remand, in the course of a pretrial conference, the court concluded that it was unnecessary to try the estoppel issue because by virtue of the adoption of our new constitution there was no longer any requirement to have two…
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Morton Rosenthal and Helen Rosenthal v. Finger & Margolis, P.A., 460 So. 2d 993 (Fla. 4th DCA 1984)…ich 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 unwitnessed contract to sell non-homestead real estate may be specifically enforced, th…
Authorities Cited
- Frieda Zimmerman v. Diedrich, 97 So. 2d 120 (Fla. 1957)
- COX v. LA Pota, 76 So. 2d 662 (Fla. 1954)
- Mrs. T. B. Althouse v. Kenney, 182 So. 2d 270 (Fla. 2d DCA 1966)
- Koplon v. Smith, 271 So. 2d 762 (Fla. 1972)