Adams v. Malloy

Shackleford, J. (after stating the facts.) — All the parties litigant have construed ¿he instrument, which we have copied above and which the complainant seeks to have removed, as a cloud upon his title, as a conveyance of the timber growing on the lands described therein, with the right of ingress and egress for a term of ten years, and we shall so treat such instrument. It is obvious that each of the grantors, Anrrew J. Green and Rebecca O. Green, his wife, signed, sealed and delivered such instrument in the presence of two subscribing witnesses, in accordance [500] with the requirements of Section 2448 of the General Statutes of Florida. The certificate of the officer as to the proof of such execution is somewhat confused. Even if it be conceded that the proof of the execution by Andrew J. Green by one of the subscribing witnesses to the instrument is sufficient, we must hold that the certificate of the officer fails to show an acknowledgment by Rebecca O. Green in compliance with Section 2462 of the General Statutes of Florida, as a subscribing witness to a conveyance has no authority as such subscribing witness to take the acknowledgment of a married woman, and the fact that such subscribing witness acknowledges before some officer authorized to take acknowledgments that the married woman acknowledged the execution of the instrument before him will not avail, even though such subscribing witness acknowledges and sets forth a compliance with all the statutory requirements by the married woman before him. It is admitted by the respective parties by their pleadings that the land described in the instrument constituted the homestead of Andrew J. Green •and Rebecca O. Green, his wife. Sections 1 and 4 of Article X of the Constitution of Florida read as follows : “Section 1. A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with one thousand dollars’ worth of personal property, and the improvements on the real estate, 'shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists. But no' property shall be exempt from sale for taxes or assess501 merits, or for the payment of obligations contracted for the purchase of said property, or for the erection or repaid of improvements on the real estate exempted, or for house, field or other labor performed on the same. The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner; and no judgment or decree or execution shall be a lien upon exempted property except as provided in this article.” “Section 4. Nothing in this article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed by himself or herself, and by husband and wife, if such relation exists; nor if the holder be without children to prevent him or her from disposing of his or her homestead by will in a manner prescribed by law.” We had occasion to construe these constitutional provisions in Thomas v. Craft, 55 Fla. 842, 46 South. Rep. 594, 15 Ann. Cas. 1118, wherein we held: “The words ‘alienable’ and ‘alienating-’ are used in Article X of the Constitution in the sense of conveying- or transferring the legal title, or any beneficial interest in, the exempt homestead real estate during the life of the owner. The method by which the homestead shall be alienated, i. e. conveyed or transferred, being expressly and specifically prescribed and defined in the constitution to be by joint consent and by deed or mortgage duly executed by husband and wife when that relation exists, all other methods of alienation during the life of the owner are inhibited.” We also said in the opinion rendered therein: “Therefore no instrument is effectual as an alienation of or a conveyance or transfer of title to or any interest in the homestead real estate, without the joint consent of hus [502] band and wife when that relation exists, which j oint consent shall be evidenced by a deed or mortgage duly executed and acknowledged by the husband and wife with the formalities prescribed by law for conveyances by husband and wife.” In other words, the signing, sealing and delivery of a deed by a married woman is not sufficient to convey her interest in the land described therein, whether such interest be dower, separate estate or what not. In addition thereto, in order to render such deed effectual as to her, she must acknowledge the same in accordance with the statutory requirements. See Section 2462 of the General Statutes of Florida, which reads as follows: “To render such sale, conveyance, mortgage or relinquishment, whether of separate estate or of dower effectual to pass a married woman’s estate or right, she must acknowledge, before some officer authorized to take acknowledgment of deeds, separately and apart from her husband, that she executed the same freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband, and the officer’s certificate shall set forth all the foregoing requirements.” Also see Carn. v. Haisley, 22 Fla. 317 and Walling v. The Christian & Craft Grocery Co.; 41 Fla. 479, 27 South. Rep. 46, 47 L. R. A. 608. We would also refer to the notes on page 3 of 9 Ann. Cas. and page 1119 of 15 Ann., Cas., where many authorities will be found collected from other jurisdictions. Since Rebecca O. Green never assented to the execution of the instrument in accordance with the statutory requirements, it necessarily follows that there has been no “joint consent of the husband and wife” which the Constitution mandatorily requires in order to make a conveyance of the homestead valid and effectual to pass the title thereto. [503] As we have previously said, all the parties have treated the instrument in question as a conveyance of the timber rights upon the land described therein, and not of the entire estate. This being true, we must determine whether the principle which we have just announced is applicable to such instrument. Upon this point the authorities would seem to be divided. See the notes on pages 3 of 9 Ann. Cas. and 1119 of 15 Ann. Cas. to which we have previously referred. Such division of the authorities evidently is largely due to the variant statutes in the different jurisdictions. Our statute regulating conveyances of real estate is section 2448 of the General Statutes, which reads as follows: “No estate or interest of freehold, or for a term of years more than, two years, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by a deed in writing, signed, sealed and delivered in the presence of at least two subscribing witnesses by the party creating-, making, granting, conveying, transferring or releasing such estate, interest, or term' of years, or by his agent thereunto lawfully authorized, unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or interest, either of freehold, or of term of years other than terms of years of not more than two years, or any uncertain interest of, in, to or out of any lands, tenements, messuages or hereditaments, shall be assigned or surrendered unless it be by deed, signed, sealed and delivered in the presence of at last two subscribing witnesses, by the party so assigning or surrendering, or by his agent thereto lawfully authorized, or by the act and operation of law." In construing this statute we have held that it em [504] braced leases of land for turpentine privileges for a term of more than two years. Graves v. Harris, 63 Fla. 169, 58 South. Rep. 236. See also High v. Jasper Mfg. Co., 57 Fla. 437, 49 South. Rep. 156. Kloke v. Wolff, 78 Neb. 504, in N. W. Rep. 134, 11 L. R. A. (N. S.) 99, to which is appended a valuable note, is in point. We would also refer to Crouse v. Mitchell, 130 Mich. 347, 90 N. W. Rep. 32, 97 Amer. St. Rep. 479. It necessarily follows from what we have said that we are of the opinion that the instrument in question must be held to be ineffectual as a conveyance of an interest in the homestead real estate, therefore, the demurrer was erroneously sustained to the bill, and the order must be reversed. Taylor, C. J., and Whitfield and Ellis, JJ., concur. Cockrell, J., absent on account of illness.