Citations
- 79 Fla. 458
Full opinion text
Wills, C. J.
The appellants filed their hill of complaint against the appellees in Which they allege they severally secured judgment in 1918 against the appellee, J. L. Hargrave, that executions issued on said judgments, that the land described in the bill is the only piece of property assessed in the name of J. L. Hargrave, that the property was deeded to J. Louis Hargrave and Anna M. Hargrave, his wife, on Juñe 25th, 1914, and deed recorded August 24th, 1914, and that said property still stands in these names; that J. Louis Hargrave and J. L. Hargrave, the defendant in this case, is one and the same person; that they are unable to levy upon said land because the same is held in an estate of entirety by the defendants, that said property is not the homestead of the defendant and is now being rented by the defendants to other persons and at a reasonable rental value of f25.00 per-month.
That there appears on the record's of Osceola County two unsatisfied mortgages against said property given in 1914 and 1917, respectively, by the defendants, that complainant is informed tha¡t ,the mortgage given in 1917 had been paid. The bill prays that the court will adjudicate the interest of J. L. Hargrave in the premises and subject the interest of the said Hargrave to the lien and satisfaction of appellant’s judgments without injuring or interfering with the lawful rights of Anna M. Hargrave in the premises; that for this purpose the court will take possession of the usufruct of said property during the life of J. L. Hargrave by a pamper officer, and shall manage and control the same, and collect the rents and profits from the premises, and apply the same to the satisfaction of the said judgment. That the officer appointed by this Court for this purpose shall be placed xxnder bond and shall be a disinterested third party, and' shall be held to account to the Court for his acts and doings hereunder, and shall be authorized, subject to the right of survivorship existing in Anna M. Hargrave, to lease and rent the said premises for a sum satisfactory to this Court, and after keeping the said property properly insured, taxes thereon paid, and repairs properly attended to, apply the balance, if any, to 1he satisfaction of said judgments until the same shall be extinguished by payment. And thereupon, after proper accounting, that the said officer shall be discharged, and the property returned to the owners.
The defendants demurred to the bill upon the following grounds:
1st. That the said bilí is bad in substance.
2nd. That there is no equity in said bill.
3rd. That the said bill is vague, indefinite, uncertain and insufficient.
4th. That there can be no partition of an estate held in entirety.
5th. That the ownership vested in the defendant J. L. Hargrave, one of the defendants herein, is of such a nature that it cannot be partitioned or sold or subjected to a writ of execution.
6th. That under the laws of this State, property held by a husband and wife as an estate of entirety cannot be subjected to the debts of the husband.
The court sustained the demurrer and allowed the appellants to amend and upon their refusal to amend dismissed the bill.
There is a diversity in the holdings of the courts of the different states upon the question whether or not the husband has such an interest in an estate by entirety as can be subjected to sale under a judgment against him alone, or the rents and profits from such estate sequestered to the payment of such judgment..
One class of cases proceed upon the theory that at common law a husband was entitled to the possession and control and could dispose of the rents and profits during their joint lives.
Another class of cases hold that the laws, entitling wives to hold separate property — commonly known as the married woman’s Acts — abolished estates by entirety as known to the common law and when a deed was made jointly to husband and wife they held the lands as an estate in common or joint tenancy, except as to survivor-ship.
Still another class decide that while the estate in itself cannot be subjected to, a judgment against the husband alone, that the rents and profits of such estate may be sequestered for the payment of such judgment.
Tn this State estates by entirety are still recognized as at common law except as modified by statute or constitutional provisions.
“Where land was conveyed to both husband and wife an estate by entirety was created at common law an