Appendix — Schreiber v. Chase Federal Savings & Loan Ass'n
Supreme Court brief1986
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| Supreme Court, U.S.
FILED
APR 1 (986
YOSEPH F. SPANIOL, JR,
CLERK
‘
85-1816
CASE NO.
IN THE
SUPREME COURT
OF THE
UNITED STATES
October Term, 1985
JERRY B. SCHREIBER,
Personal Representative
of the
ESTATE OF
THEADORES W. ROSS,
Petitioner,
vs.
CHASE FEDERAI. SAVINGS
AND LOAN ASSOCIATION,
Respondent.
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF FLORIDA
APPENDIX
TO
PETITION FOR WRIT OF CERTIORARI
Jerry B. Schreiber, Esq.
Counsel of Record
207 Biscayne Building,
19 West Flagler Street,
Miami, Florida 33130
(305) 371-4444
Joseph McGowan, Esq.
Rte. 3, Box 3392,
Blue Ridge, Ga. 30513
(404) 632-2908
NOTE TO THE READER:
Petitioner has provided an
Appendix Tracing Table in
the beginning of this
Appendix to facilitate its
use. Direct reference is
made to pages of the Peti-
tion for Writ of Certiorari
APPENDIX
TABLE OF CONTENTS
Subject Appendix Page No.
Opinion and Decision
of the Supreme Court
of Florida, dated
August 30, 1985 a oe oS la
Unofficial Opinion
and Decision of
the Supreme Court
of Florida, dated
July 26, 1984. ss 4 eee 72a
Order on Rehearing,
dated Jan. 2, 1986 ..C.. . 107a
Complaint of Peti-
tioner - + 2 ees 108a
Answer of Respon-
dent ae Oe cee ll4a
Respondent's Motion
for Rehearing filed
in the Supreme Court
of Florida on August
9, 1984 ae 2 120a
Petitioner's Res-
ponse to Respondent's
Motion for Rehearing,
filed in the Florida
Supreme Court, on
August 20, 1984 » « « @ «6 « 124a
ii
Petitioner's Motion
for Rehearing filed
in the Florida
Supreme Court on
September 24, 1985. ..H... 129a
Order of the Florida
Supreme Court, on
Perezes' Motion to
Intervene, dated
March 6, 1986 Sek 2a 165a
Excerpt of Transcript
of Preliminary Pro-
ceedings, 1966-67,
Florida Constitution,
1968 ‘oto eee 166a
iii
APPENDIX TRACING TABLE
DEVELOPED FOR PETITION FOR WRIT OF
CERTIORARI
As this Appendix is so voluminous,
the below tracing table was developed.
l. Enter table using Petition page
number on which Appendix is referenced.
2. Find appropriate/pertinent page
in Appendix.
Page No. Appendix Pertinent
in Reference Page(s) of
Petition Appendix.
2 F 120a
2 -_ 124a
3 A 54a
3 Cc 107a
5 E 114a-119a
5 F 120a-1l2la
5 G 125a-126a
5 C 107a
) D 108a-ll3a
12 I 165a
13 B 89a
iv
13 F 120a-12la
13 G 125a-126a
13 A 66a- 67a
13 E 114a-119a
14 a 52a- 54a
14 H 14la-154a
15 Cc 107a
22 A 49a
24 A 53a
24 E 114a-119a
24 F 120a-12la
25 G 125a-126a
25 H 15la-154a
29 a 53a
32 J 166a-169a
34 al 67a- 68a
36 A 53a
lincorrectly identified as "C" in
Petition.
SUPREME COURT OF FLORIDA
Friday, August 30, 1985
CHASE FEDERAL SAVINGS AND
LOAN ASSOCIATION,
Petitioner,
vs. CASE No. 63,017
JERRY B. SCHREIBER,
Personable Representative
of the ESTATE OF THEADORES
W. ROSS,
Respondent.
The motion for rehearing is granted.
The opinion filed in this case on July
26, 1984 is withdrawn, and the following
opinion dated August 30, 1985, is substi-
tuted in lieu thereof.
BOYD, C.J., and ADKINS, ALDERMAN and
SHAW, JJ., Concur
OVERTON, McDONALD and EHRLICH, JJ,
Dissent
la
SUPREME COURT OF FLORIDA
No. 63,017
CHASE FEDERAL SAVINGS AND
LOAN ASSOCIATION, Petitioner,
vs.
JERRY B. SCHREIBER, Personal
Representative of the Estate
of Theadores W. Ross, Responsent.
ON REHEARING
(August 30, 1985)
BOYD, C.J.
This is a petition to review a deci-
sion of the Third District Court of
Appeal, sitting en banc, reported as
Schreiber v. Chase Federal Savings &
Loan Association, 422 So. 2d 9ll (Fla. 3d
DCA 1982), in which the district court
held that strict decisional conflict, as
that concept has been used to define this
2a
Court's authority to review district
court decisions, is the standard to be
used in determining when intra-district
decisional conflict exists to allow the
district court to sit en banc to har-
monize its decisions. The district court
certified the following question to be of
great public importance:
What is the proper scope of
review for district courts of
appeal in granting rehearings en
banc?
We have jurisdiction. Ost. Vee
3(b)(4), Fla. Const. We answer the cer-
tified question by holding that’ the
district courts of appeal, in exercising
their en banc power, are not limited by
the case-law standards adopted by the
Supreme Court of Florida in the exercise
of its discretionary conflict jurisdic-
tion. We hold that the district courts
are free to develop their own concepts of
3a
decisional uniformity.
The case which precipitated the cer-
tification of the question concerning the
scope of en banc review involves the
validity of a deed to a grantee, not
related to the grantor by blood or
marriage, in which the stated con-
sideration was “love and affection.” The
specific issue is whether a deed which
shows on its face that the consideration
is "love and affection," but does not
show on its face that the grantor and
grantee are related by blood or marriage,
is effective to pass title.
The record reflects that Theadores
Ross, a lady ninety years of age, trans-
ferred title to her home to Peter
Cournoyer by a quitclaim deed which
Stated that "[t]his quitclaim deed is
being given with the consideration being
love and affection." The deed was
4a
Sn ae Pe ee ne De en Aw tn Neto Metis o
a
a fe eee en ae eee
recorded with the minimum amount of docu-
mentary stamps affixed. Cournoyer then
sold the property to Luis and Gladys
Perez for $50,000. The Perezes obtained
the major portion of the purchase price
from a loan supplied by Chase Federal
Savings and Loan Association and secured
by a mortgage on the property in
question.
After Cournoyer sold the property to
the Ferezes, Ross brought this action
seeking cancellation of her deed to
Cournoyer, Cournoyer's deed to the
Perezes, and the Perezes' mortgage to
Chase Federal, on the ground that the
original deed to Cournoyer was void for
lack of consideration. The trial court
found "there was no consideration for the
execution of . . . [the deed to
Cournoyer] with the exception of love and
5a
affection and therefore equitable title
and interest in the subject property
remained" in Ross. The trial court
concluded, however, that “legal title did
pass" from Cournoyer to the Perezes
because the Perezes were bona _ fide
purchasers having paid a valuable con-
sideration without notice of any infir-
mity, and therefore their title to the
subject property and interest in the sub-
ject property respectively shall stand.”
Finally, the trial court, holding that a
constructive trust arose for the benefit
of Ross in the proceeds received by
Cournoyer in the sale to the Perezes,
entered a judgment for Ross against
Cournoyer in the amount of $50,000.
Ross appealed the trial court's
denial of her claim for cancellation of
the deeds and mortgage, asserting that
the Perezes, as purchasers, and Chase
6a
20 de RAD.
Federal, as mortgagee, did not have valid
interests in the property because there
was notice on the face of the deed to
Cournoyer that the consideration was
legally insufficient. Therefore, Ross
contended, the Perezes were not bona fide
purchasers for value without notice and
Chase Federal could not claim a valid
mortgage on the property. The district
court of appeal initially rejected Ross's
argument and affirmed the trial court's
order without opinion. Judge Schwartz
dissented. Ross moved for hearing en
banc and and the court, pursuant to the
procedure governed by Florida Rule of
Appellate Procedure 9.331, granted it. A
majority of the en banc court, con-
Sidering the cause on the merits reversed
the trial court, holding that under the
district court's prior decision in
Florida National Bank & Trust Company v.
7a
Havris, 366 So. 2d 491 (Fla. 3d DCA
1979), a deed given to a non-relative in
return for love and affection is invalid
for lack of consideration. In so holding
the district court found that the Perezes
and Chase Federal were on notice to make
inquiry concerning the propriety of
Ross's deed to Cournoyer because the only
consideration it reflected was "love and
affection." The district court then
remanded the cause with directions to
cancel the deed to Cournoyer and the
Perezes and the mortgage to Chase
Federal. We hold that the deed was valid
and effective to pass legal title not-
withstanding that there was no valuable
consideration paid and the grantor and
grantee were not related.
The judges of the district court
sitting en banc disagreed among them-
selves as to the standard to apply to
Acie Pee) ee
determine whether there was conflict be-
tween the decision of the initial three-
judge panel of the district court in the
instant case and the district court's
previous decision in Havris. In the ini-
tial panel decision, as_ previously
stated, the court affirmed the trial
court without opinion with Judge Schwartz
writing a dissent. The dissent asserted
that the majority had failed to properly
apply Havris. In Havris, an action was
brought by the grantor to cancel a deed
to the unrelated grantee on the ground
that the deed was not supported by con-
sideration, which was stated as love and
affection. As noted, the district court
there held that "love and affection" did
not constitute valid consideration where
the conveyance was between persons unre-
lated by blood or marriage and that the
deed was invalid. In the instant case,
9a
four members of the district court
sitting en banc --Judges Schwartz,
Hendry, Pearson, and Jorgenson--believed
that there was "a lack of uniformity"
between Havris and the initial decision
in the instant’ case. These judges
believed that Florida Rule of Appellate
Procedure 9.331 allowed the district
court to sit en banc in this case in
order "to maintain uniformity of
decisions." Four other judges of the en
banc court--Judges Hubbart., Nesbitt,
Barkdull, and Baskin--believed that the
district court had no authority to sit en
banc in this case because the controlling
facts in Havris and this case were not
the same. According to chese four
judges, there was no direct conflict bet-
ween Havris and this case under the stan-
dard used by the Supreme Court of Florida
10a
a Sh RHR A Ae mM EES AME REAL ah MICE tHE Nie let AIA Ftd
a ee Ow a Pe ene ee a
in exercising its conflict jurisdiction.
These four judges concluded that they
were obligated to follow the precedent
established in Nielsen v. City of
Sarasota, 117 So. 2d 731 (Fla. 1960),
which defined decisional conflict as
(1) the announcement of a rule of
law which conflicts with a rule
previously announced by this
[Florida Supreme] Court, or (2)
the application of a rule of law
to produce a different result ina
case which involves substantially
the same controlling facts as a
prior case disposed of by this
Court.
Id. at 731 (emphasis in original). One
member of the en banc panel, Judge
Ferguson, agreed that Nielsen provided
the correct standard to be used by the
district courts in determining conflict
for en banc purposes, but believed that
under that standard conflict existed bet-
ween Havris and the initial panel deci-
sion in the instant case.
Judge Nesbitt, in a dissenting opinion
lla
concurrea in by four other nonbers of the
court, expressed the view that since the
en banc rule was established to resolve
intra-district conflict which was for-
merly resolved by the Supreme Court, then
the power exercised by the district
courts to hear en banc proceedings must
be the same as the standard abegnet by
the Florida Supreme Court in the exercise
of its discretionary conflict jurisdic-—
tion. Judge Nesbitt further asserted
that any change in the definition of
conflict by broadening the present
Florida Supreme Court standard would be
unconstitutional. Judge Hubbart wrote a
dissenting opinion in which he agreed
with Judge Nesbitt and detailed the
history of Florida's rule 9.331.
We respectfully reject the interpreta-
tion that the district courts, in exer-
cising their en banc powers, are limited
12a
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pSbenaibe Rte
iit ML AeA SERED AREA ALG COE A 4h,
by the standards adopted in case deci-
sions by this Court in the exercise of
its discretionary conflict jurisdiction.
This Court has held the en banc process
to be constitutional and has stated that
"[t]he district courts are free ... to
Gevelop their own concept of decisional
uniformity." In re Florida Rules of
Appellate Procedure, Rule 9.331, 374 So.
2d 992, 994 (Fla. 1979) as modified in
377 So. 2d 700 (Fla. 1979), and as
further modified in 416 So. 2d 1127 (Fla.
1982).
In holding the en banc process consti-
tutional, we construed the "three judges
shall consider each case“ language of
article V, section 4, as not restricting
the district courts from hearing cases en
banc. Our decision was consistent with
the decision of the United States Supreme
Court in Textile Mills Securities Corp.
l3a
v. Commissioner, 314 U.S. 326 (1941). In
Textile Mills, the United States Supreme
Court upheld the inherent authority of
the Third Circuit Court of Appeals to
establish a procedure for that court to
sit en banc without authorization by
existing rule, statute, or constitutional
provision. See Hearing and Rehearing
Cases En Banc, 14 F.R.D. 91 (3d Cir.
1953); Commissioner v. Textile Milis
Securities Corp., 117 F.2d 62 (3d Cir.
1940. In construing the statutory provi-
sion establishing the federal circuit
courts. of appeals, the United States
Supreme Court concluded that the proviso
that there should be a circuit court of
appeals in each circuit “which shall con-
sist of three judges" did not prohibit an
en banc process and that the court was
not restricted to deciding cases with
l4a
Pe ee ee
only three judges. In approving this en
banc process, the United States Supreme
Court commented that it was a means of
"more effective judicial administration"
and determined that "[cJonflicts within a
circuit will be -.avoided. Finality of
decisions in the circuit courts of
appeals will be promoted." 314 U.S. at
335. It should also be noted that in a
subsequent case the United States Supreme
Court reaffirmed this view and held that
the en banc process was an expression of
the court's power rather than a party's
right. Western Pacific Railroad Corp. v.
Western Pacific Railroad Co., 345 U.S.
\
247 (1953). In Western, the Court held
that although a litigant does not have a
right to an en banc hearing, the liti-
gant must be given an opportunity to
request such a hearing.
The federal en banc process is broader
15a
than that provided in Florida Rule of
Appellate Procedure 9.331 because, in
addition to addressing issues of
conflict, the federal process allows the
courts of appeal to sit en banc to hear
cases of "exceptional importance." When
this Court adopted rule 9.331 in 1979, we
decided that there was no need to
authorize the en banc process in the
district courts except for use in the
settlement of intra-district conflict to
help reduce the then-existing caseload of
the Florida Supreme Court.
The en banc process now authorized for
the district courts is designed to help
the district courts avoid conflict,
assure harmonious decisions within the
court's geographic boundaries, and deve-
lop predictability of the law within
their jurisdiction. Consistency of deci-
sions within each district is essential
l6a
to the credibility of the district
courts. There has been crivcicism of
intermediate appellate courts for their
failure to speak with "a single voice of
the law." Meador, An Appellate Court
Dilemma and A Solution Through Subject
Matter Organization, 16 U. Mich. J.L.
Ref. 471, 474 (1983). As judges are
added to Florida's district courts to
meet expanding caseloads, the resulting
increased number of three-judge panels
cannot help but increase the number of
inconsistent and conflicting decisions.
When there is a general rotation of
Florida's district court judges among
three-judge panels, the increased number
of panel combinations compounds — the
problem. With a five-member court, the
number of different panel combinations is
ten. With a twelve-member court,
however, the number of panel com-
17a
binations is 220. The en banc process
provides a means for Florida's district
courts to avoid the perception that each
court consists of independent panels
speaking with multiple voices with no
apparent responsibility to the court as a
whole. The process provides an important
forum for each court to work as a unified
collegial body to achieve the objectives
of both finality and uniformity of the
law within each court's jurisdiction. We
have previously said that
{ujnder our appellate structural
scheme, each three-judge panel of
a district court of appeal should
not consider itself an independent
court unto itself, with no respon-
sibility to the district court as
a whole. ...
- « « We would expect that,
in most instances, a three-judge
panel confronted with precedent
with which it disagrees’ will
suggest an en banc hearing. ...
Consistency of law within a
district is essential to avoid
unnecessary and costly litigation.
18a
416 So. 2d at 1128. We expressly granted
the district courts broad discretionary
authority "to develop their own concept
of decisional uniformity" to be able to
fully carry out these expressed purposes.
374 So. 2d at 994. In regard to the ori-
ginal panel decision in the instant case
and the district court's decision in
Havris, we agree with Judge Schwartz that
it would be difficult for the legal pro-
fession to harmonize these decisions.
Havris held that a deed to a non-relative
not based on a valuable consideration
was not effective to pass legal title;
the original panel decision in the
instant case affirmed a trial court deci-
sion holding that such a deed was effec-
tive to pass legal title.
We hold that the district court of
appeal, in implementing the provisions of
appellate procedure rule 9.331, # has
19a
authority to adopt the standard of
conflict it believes necessary or
appropriate in order to harmonize the
decisions of the court and avoid costly
relitigation of similar issues within its
appellate district. We therefore quash
the decision of the district court of
appeal to the contrary.
We now reach the issue upon which the
intra-district conflict below was predi-
cated and which is the essential legal
issue in question in the original dispute
giving rise to this proceeding.
As was stated above, Theadores W. Ross
conveyed her home to Peter R. Cournoyer
by means of a quitclaim deed. The deed
contained the standard formal reference
to the "consideration of $10.00 and other
valuable consideration," but contained
an additional statement reciting, "This
quitclaim deed is being given with the
20a
at te i
tai seinen etek’ ssa te
consideration being love and affection."
The deed from Ross to Cournoyer was
duly recorded. Subsequently, Cournoyer
sold the property to Luis and Gladys
Perez for$50,000. Mr. and Mrs. Perez,
who are not parties to this proceeding,
gave a mortgage on the property to
respondent Chase Federal Savings and Loan
Association to secure a loan which pro-
vided much of the purchase- money.
After the conveyance from Cournoyer to
the Perezes and the execution by the
latter of the mortgage in favor of Chase
Federal, Mrs. Ross brought an action to
rescind and cancel her deed to Cournoyer.
Her petition sought to have the deed set
aside on the ground that a deed not sup-
' ported by a valuable consideration can
only be valid if the grantor and grantee
are related either by consanguinity or by
marital affinity. As for the claim of
2la
the Perezes and their moztgage holder,
Mrs. Ross argued that because the public
record gave them notice that the deed to
Cournoyer was void because given in con-
sideration of love and affection to a
grantee not declared in the deed to be a
familial or marital relation of the gran-
tor, they were not entitled to be treated
as subsequent purchasers without notice
of the invalidity of the deed.
The trial court found that there was
in fact no monetary consideration paid
for the conveyance from Ross to
Cournoyer. The court nevertheless held
that the deed was effective to pass legal
title. The trial court found as a matter
of fact that’ the Perezes and Chase
Federal did not have actual eebion of any
formal defect or invalidity in the deed
from Ross to Cournoyer. So the trial
court declined to give Mrs. Ross the
22a
ee
ss ea ee
requested relief of declaring her deed to
Cournoyer a nullity and cancelling it.
The court ruled, however, that when Cour-
noyer took legal title from Mrs. Ross,
there was a resulting trust in her favor
because of the lack of a valuable con-
sideration. Therefore, when he sub-
sequently sold the land, the court ruled,
he held the proceeds in trust for her.
The trial court accordingly entered
judgment for Mrs. Ross in the amount of
$50,000, equalling the proceeds of the
Sale by Cournoyer to the Perezes.
The judgment against Cournoyer in
favor of Mrs. Ross, based on the
resulting trust theory, was not appealed
and its legal correctness is not an issue
before us. Mrs. Ross appealed the trial
court's judgment denying her claim for
cancellation of the deed.
23a
As was stated previously, the trial
court's judgment was at first simply
affirmed without opinion. Ross v. Chase
Federal Savings & Loan Assn., 424 So. 2d
779 (Fla. 3d DCA 1981). On rehearing en
banc, however, the district court of
appeal reversed the trial court and held
(1) that the deed from Ross to Cournoyer
was void and not effective to convey any
interest in the land and (2) that the.
Perezes and Chase Federal had construc-
tive notice, from the title record, of
the invalidity of the deed and therefore
could not claim any interest superior to
that of Mrs. Ross by virtue of being sub-
sequent purchasers without notice.
Schreiber v. Chase Federal Savings & Loan
Assn., 422 So. 2d 911 (Fla. 3d DCA 1982).
Petitioner Chase Federal contends that
this ruling was error. We agree and
quash the decision.
24a
— see eee ee ee ee ee, ee ee ee pe
ena cy Se,
i
The district court sitting en banc
adopted as its opinion on the merits of
the case the dissenting opinion filed
with the initial panel decision affirming
the trial court. That opinion said in
pertinent part:
This court recently and squarely
held in Florida National Bank and
Trust Co. at Miami v. Havris, 366
So.2d 491 (Fla. 3d DCA 1979) that
a deed given to a non-relative in
return only for "love and
affection" is "without con-
Sideration and... invalid." 366
So.2d at 496. Since Cournoyer was
admittedly not related by blood or
marriage to Ms. Ross, this prin-
ciple is plainly applicable to
this case. It is just as apparent
; that the Perezes and Chase were on
implied or constructive notice of
the resulting invalidity of the
deed. The face of the recorded
instrument itself shows that the
only consideration was "love and
affection" and did not affir-
matively indicate any relationship
between the grantor and grantee,
who have different names., I
think that these recitals clearly,
and at the least, put subsequent
purchasers to the minimal duty of
inquiry as to whether such a rela-
tionship in fact existed...
Since it is undisputed both that
25a
such an investigation would have
revealed that it did not and that
no such investigation occurred, the
cited cases require, in my view
that the judgment below be
reversed.
424 So. 2d at 779-80 (citations and foot-
notes omitted).
The Havris decision found by the
district court to be controlling involved
an action for rescission of a deed,
reserving a life estate, from an elderly
lady to her housekeeper's niece. The
trial court found that the niece paid no
valuable consideration for the conveyance
but that the deed of gift was valid.
The district court of appeal reversed,
holding as follows:
We hold, as contended by the
appellant, that the two deeds by
which this 94-year-old woman
transferred her home to Mary
Havris were without consideration
and were invalid. In holding the
unrecorded deed of March 19, 1975,
was valid, the trial court
misapprehended and misapplied the
law, by concluding that love and
26a
—_
affection of or towards one not a
blood relation of the grantor
constituted adequate consideration
for Mrs. Garrett's deeding of her
property to Mary Havris, to whom
she was not related.
366 So.2d at 496.
A case in contrast to Havris is
Williamson v. Kirby, 379 So.2d 693 (Fla.
2d DCA 1980). There an elderly lady con-
veyed her home to her close friend
reserving a life estate to herself. A
subsequently appointed guardian of the
grantor sought to set aside the deed.
Although alleging that the deed was given
without consideration, the complaint also
alleged that a relationship of confidence
had existed between grantor and grantee
and that the grantee had exercised undue
influence in procuring the deed. The
trial court found that there was no con-
Sideration paid, the deed of conveyance
27a
being “an outright gift," that there was
a confidential relationship, that the
grantee was active in procuring the gift,
and that the deed was the result of undue
influence. The district court agreed
that the circumstances of the rela-
tionship of trust and confidence together
with the conduct of the grantee in faci-
litating the conveyance were sufficient
to raise a presumption of undue
influence, but disagreed that this
justified setting aside the deed.
If the contestant is successful in
raising the presumotion, the bene-
ficiary then has the burden of
explaining his active involvement
in the preparation of the will [or
inter vivos gift]. He does not
have the burden of disproving
undue influence. If the explana-
tion is reasonable, the presump-
tion vanishes and it becomes the
court's responsibility to deter-
mine whether the contestant has
established undue influence by the
greater weight of the evidence.
Such evidence may include not only
the evidence initially presented
28a
—_
-aiilenciiaiiaieaaaaiaceaibaaaiaiiel
to raise the presumption but any
additional evidence which the par-
ties have introduced.
379 So.2d at 695 (bracketed language
added). The court found that the
grantee's explanation of her invol-
vement in the procuring of the con-
veyance rebutted the presumption of
undue influence and that the evidence
“as a whole showed that the gift was
not the product of undue influence.
The evidence showed that the
grantee's conduct was not improper
and the grantor's gift was voluntary
and reasonable under the circumstances.
While our courts must be vigilant
to protect the aging against any
form of overreaching, simply
because an elderly person chooses
to give her property to a friend
instead of her relatives does not
warrant cancelling the deed where
as here there is no real proof of
undue influence.
29a
Id. at 697. While it appears from the
opinion that lack of consideration was
either not raised on appeal or was aban-
doned, it is highly significant that
there was no suggestion in the opinion
that a deed is rendered invalid solely
because of the lack of valuable con-
Sideration and lack of family rela-
tionship. A comparison of Williamson v.
Kirby with Havris and the district court
decision in the present case suggests an
inconsistency in the law on this
question.
We are also troubled by the implica-
tions of Havris in the area of charitable
gifts of land. Where one donates land
for religious, educational, or phi-
lanthropic purposes, it seems clear that
there is no real monetary consideration
and that any recitation of nonminal con-
30a
Yaa SY see ee ee
2 ee th ak ae i a a ee i ee
sideration in the deed is purely a matter
of form. Yet under Havris, such a gift
may be set aside contrary to the intent
of the donor.
As was stated above, the district
court relied on Havris as the deter-
minative authority for its decision. In
Havris, as authority for its holding, the
court cited the statement in 10 Florida
Jurisprudence, Deeds § 59 that for love
and affection to constitute good con-
Sideration, “there must be some blood or
marriage relationship between the grantor
and the grantee." "Said statement," the
court said, “is derived from the English
Rule which requires that in order for
love and affection to be good con-
Sideration for a conveyance, said love
and affection must be toward one to whom
a natural duty exists, such as near rela-
3la
tives by either consangunity or
affinity." Id at 496. The only Florida
decisions cited in support of the ruling
were cases where love and affection was
ruled sufficient consideration and the
grantor and grantee were related.! No
case was cited where a deed was cancelled
by a Florida court because of lack
of a valuable consideration. The
question before us is whether’ the
"English Rule" referred to in Havris is
part of the law of Florida. As has
already been indicated, we find that it
is not.
The so-called English Rule relied on
by Havris and by the district court in
the instant case can be summarized as
follows: a deed, in order to be effec-
lwise v. Wise, 134 Fla. 553, 184 So.91
(1938); Waterman v. Higgins, 28 Fla.
660, 10 So. 97 (1891); Vasquez v.
Santisteban, 334 So.2d 97 (Fla. 3d DCA
1976). The cases are cited at 366
So.2d at 497.
32a
tive to pass title, must be supported by
either a valuable or a good considera-
tion, the former being required in deeds
by bargain and sale and the latter
being sufficient in covenants to stand
seised to the use of another, which
may only be used when the grantor and
grantee are related by consanguinity or
marital affinity. See 4 H. Tiffany, The
Law of Real Property § 957 (3d ed. 1975);
23 Am. Jur. 2d Deeds §§ 12-13, 61-62
(1965). Some secondary sources of legal
authority indicate that this rule is in
effect in Florida by virtue of the opera-
tion of the Statute of Uses. See, e.g.,
19 Fla. Jur. 2d §§ 5, 44, 49-50 (1980).
However, we find no- binding legal
authority holding that the purported rule
is now a viable part of Florida law.
33a
The Statute of Uses was enacted in
1535 to remedy the problems caused by
dual legal and equitable ownership of
land.2 Equitable ownership had arisen
as a means of avoiding the legal require-
ments of land transfer and the feudal
incidents of legal land ownership.3 The
statute provided that anyone with benefi-
cial ownership of land should henceforth
be deemed to be the ‘ieeed owner .4
After the enactment of the statute,
the common-law courts began to recognize
21H. Tiffany, The Law of Real Property
§ 224 (B. Jones, 3d ed. 1939));
Smith, The Statute of Uses: A Look at
Its Historical Evolution and Demise
18 W. Res. L. Rev. 40, 47 (1966);
Wilson, The Florida Statute of Uses,
21 Fla. L.J. 131 (1947).
3Tiffany, supra § 221; Payne, The
English Theory of Conveyances Prior
to The Land Re istration Acts Ala.
L. Rev. 227, 240-41 (1955).
4See 27 Hen. 8, c. 10 (1535), as
quoted in Smith, supra at 53-54.
34a
the ownership interests of beneficiaries
of uses, treating them as legal title
holders. Previously their interests were
only eiforceable in the chancery court.9>
Two methods of transferring uses, that
is, equitable ownership interests, pre-
viously recognized in the chancery court,
were the "bargain and sale" and the
"covenant to stand seised to the use of
another."© After the enactment of the
statute, these two- conveyancing methods
came to be recognized as valid the the
law courts and became the most commonly
used forms of deeds. As a matter of
form, the common-law courts imposed the
Same prerequisites to enforceability as
Sames, The Origin of Uses and Trusts,
21 Harv. L. Rev. 261 (1908); Bordwell,
Equity and The Law of Property, 20
Iowa L. Rev. 1 (1934).
64 H. Tiffany, The Law of Real
Property, § 957 (3d ed. 1975).
35a
had developed in the court of chancery
prior to the enactment of the statute.
Those requirements included monetary con-
sideration in the case of the deed by
“bargain and sale." The “covenant to
stand seised to the use of another" was
enforceable in equity without a monetary
consideration if made to a family member,
and was widely used in connection with
marriage settlements. The common-law |
courts imposed the same requirements.’
‘Tiffany, supra Ames, supra, at 268-69:
(Flor the most part equity declined to
enforce gratuitous instruments made
under seal. There was, however, one
class of gratuitous grants of land by
deed in which equity created a use in
favor of the donee; namely, grants or
covenants to stand seised to the use
of a blood relation, or of one con-
nected by marriage. These uses are
commonly said to arise in con-
Sideration of blood or marriage. But
consideration in such cases is not
used in its normal sense of the
equivalent for a promise, but in
general sense of reason or inducement
for the agreement to stand seised.
The exception in favor of those
related by blood or marriage had in
36a
The requirement of consideration, and
the exception allowing "good" con-
sideration to suffice in transfers to one
related by blood or marriage, were origi-
nally imposed as prerequisites to enfor-
cement of a promise to hold land for the
benefit of another. Often the petitioner
was one who had paid money in exchange
for the promise and the chancery court
considered it unjust for the covenantor
to withhold the benefits after having
received the money.8 Often the remedy
was a decree requiring the legal con-
veyance of the land to the covenantee.?
truth nothing to do with the doctrine
of consideration and was established
in the interest of the great English
families.
8ames, supra, at 267: "Equity could
not .. . refuse relief to the buyer
of land against a seller who, having
the purchase money in his pocket,
refused to convey ...."
9ames, supra; Smith, supra.
37a
While consideration was thus an impor-
tant factor to the chancery court in
arriving at the conclusion that’ the
prayer for relief was equitable, it
should be remembered that at the same
time there was no requirement of con-
Sideration to make effective the ordinary
conveyance of legal ownership of land by
livery of seisin.19 Thus the chancery
court's requirement that there be con-
Sideration as a prerequisite to enfor-
cement of a use by bargain and sale or by
covenant to stand seised to the use of
another is very much like our modern
law's requirement of consideration to
support enforcement of a promise made in
a contract. It is by something of an
10See 6 A R. Powell, The Law of Real
Property § § 880 (P. Rohan, ed. 1984);
Bordweil, Equity and The Law of
Property, 20 Iowa L. Rev. 1, 12-13
(1934); Payne, The English Theory of
Conveyances Prior | to the Land
Registration Acts, 7 Ala. L. Rev.
227, 240-41 (1955).
38a
steel
historical accident that modern deeds are
said to require a valuable or good con-
sideration. This formal requirement has
persisted because the modern deed is the
descendant of the most popular forms of
conveyance used after the enactment of
the Statute of Uses.
Florida has its own version of the
Statute of Uses. Section 689.09, Florida
Statutes (1983), provides as _ follows:
By deed of bargain and sale, or by
deed of lease and release, or of
convenant to stand seized (sic) to
the use of any other person, or by
deed operating by way of covenant
to stand seized to the use of
another person, of or in any lands
or tenements in this state, the
possession of the bargainor,
releasor or covenantor shall be
deemed and adjudged to be trans-
ferred to the bargainee, releasee
or person entitled to the use as
perfectly as if such bargainee,
releasee or person entitled to the
use had been enfeoffed by livery
of seizen (sic) of the land con-
39a
veyed by such deed of bargain and
Sale, release or covenant to stand
seized; provided, that livery of
seizin can be lawfully made of the
lands or tenements at the time of
the execution of the said deeds or
any of them.
The fact that the statute, like the
English statute, provides that various
forms of deeds are sufficient tc vest
legal title in the grantee, has led to
the statement found in some authorities
to the effect that a consideration is
necessary to support a deed. E.g., 19
Fla. Jur. 2d, Deeds, §$§ 5, 44 (1980).
However, section 689 .09 does not
expressly require that a deed of land be
supported by consideration in order to be
effective. Nor is such a requirement
clearly found in the decisions applying,
interpreting, or construing the
statute.11 The statute merely operates
llsee, e.g., Farrington v. Greer, 94
Fla. 457, 113 So. 722 (1927)3 Scott v.
Fairlie, 81 Fla. 438, 89 So. 128
(1921); Vincent v. Hines, 79 Fla. 564
40a
to vest legal title in the beneficiary
when real property is conveyed to a gran~
tee for the benefit of another.12
It is now widely recognized that the
chancery court's requirement of -con-
sideration as a prerequisite to enforce-
ment of what we today would treat as a
contract to convey has little logical
relation to modern land conveyancing.
The old rule of the court of chan-
cery, still part of the law of
trusts, that the court would not
interfere to compel performance of
a purely voluntary promise, con-
fined enforcible uses before the
statute to those founded on a
consideration; and therefore a
consideration was essential to
raise a use under the statute,
(1920); Skinner Mfg. Co. v. Wright, 56
Fla. 561, 47 So. 931 (1909); Parken v.
Sazfford, 48 Fla. 290, 37 So. 567
(1904).
12E.g., Elvins v. Seestedt, 141 Fla.
266, 193 So. 54 (1940); Hamilton v.
Flowers, 134 Fla. 328, 183 So. 81l
(1938); Newman v. Equitable Life
Assurance Society, 119 Fla. 641, 160
So. 745 (1935); Budd v. Long, 13 Fla.
288 (1869).
4la
and a conveyance would not operate
under the statute of uses unless
there was a consideration recited
or proved. On this ground
American courts have denied deeds
effect as conveyances by way of
use. But the greater number of our
courts, by far, give no regard to
such objections, holding that our
conveyances operate by virtue of
the state statutes, without any
respect to the old requirements.
Rood, The Statute of Uses and the Modern
Deed, 4 Mich. L. Rev. 109, 121 (1905).
Among the author's conclusions in the
work just cited were:
(1) that the statute of uses, the
doctrines concerning uses, and
conveyances operating by virtue of
the statute of uses, have littie
or nothing to do with the validity
of the ordinary conveyance in the
great majority of the states. It
must be remembered that we are not
discussing the importance of the
old law to enable one to
understand, or as still governing,
trusts, whether created by deed or
otherwise.
(2) That generally a conveyance
satisfying the local statutes is
sufficient, and one not satisfying
such statutes is insufficient,
regardless of the old common law.
42a
Id at 123.
All scholars and commentators now
agree that the role of consideration in
land conveyancing has been reduced to a
mere matter of form except when courts
choose to rely on the lack of con-
sideration as a reason to intervene when
something fraudulent or inequitable has
taken place. Powell says, “Today, the
necessity for consideration has become a
pure matter of form." 6A Powell, supra §
888 (foot note omitted). By Tiffany we
are told, “Although there can be not the
Slightest question that a conveyance is
ordinarily valid without any con-
Sideration, expressions are to be found
in judicial opinions in this regard which
may tend to mislead." 4 Tiffany, supra §
984. Boyer reasons that when a deed
™ recites no consideration, it is logical
43a
to presume "that a gift was intended.”
i R. Boyer, Florida Real Estate
Transactions § 11.01 (1984). Boyer also
appears to be on firm ground when he
concludes as follows: |
It is believed that the role of
consideration in suits for
avoiding deeds is an ancillary
one, and that the real issue in
most cases is simply the attain-
ment of an equitable result.
Thus, no consideration, failure
of consideration, or even inade-
quate consideration are cir-
cumstances to be considered along
with others in deciding whether
fraud, undue influence, violation
of confidence or unconscionable
advantage exists. Many of the
deeds that have been cancelled
for failure of consideration were
given in exchange for support.
When that support was not forth-
coming and the familial love
thereafter waned, one might infer
either that the promises were
made with no intention of keeping
them; hence, were fraudulent, or
that the deed was executed as a
result of undue influence. In
any event, to not cancel the deed
would be most inecuitable, tan-
tamount to letting the grantee
perpetrate a fraud on the gran-
tor, or allow the grantee to be
unjustly enriched at the
grantor's expense.
44a
““- —— wee Oe eee er
5 Id. (footnotes omitted).
There are numerous examples that
illustrate this point. In Anders v.
Anders, 143 Fla. 721, 197 So. 451 (1940),
the Court approved the cancellation of a
deed given in exchange for a promise of
support where the grantee made the pro-
* mise fraudulently to procure the con-
; veyance. The fact that the support
promised was not given -- i.e. the
failure of consideration -- was a factor
'which, taken together with the cir-
cumstances of fraud and undue influence,
was deemed to justify cancellation. See
Balso Cook v. Adams, 89 So.2d 6 (Fla.
1956); Carter v. Colson, 142 Fla. 187,
$194 So. 619 (1940).13 In Anders, the
l3similarly in Tampa Northern R. Co. v.
City of Tampa, 104 Fla. 481, 140 So.
311 (1932); the grantee was held
entitled to reformation of the deed
where the conveyance was made in
45a
grantor and grantee were related by
marriage so under the Havris rule there
was a "good" consideration for the con-
_ veyance. In Parrish _v. Robbirds, 146
Fla. 324, 200 So. 925 (1941), on the
other hand, the Court held that there was
no basis for equitable relief by can-
cellation or rescission, where the record
showed no "taint of illegality.” The
Court noted both the family relationship
and that the land was conveyed in return
for services as showing consideration,
"besides the recital that a valuable con-
sideration passed."14 Of similar import
are such cases as Drumwright v. Dana, 138
Fla. 672, 190 So. 54 (1939); Wise v.
exchange for a promise to develop the
land and improvements were
constructed.
14See also Harkness v. Fraser, 12 Fla.
336 (1868), where the court declined
cancellation sought on the ground that
the agreed consideration had not in
fact been paid.
46a
Wise, 134 Fla. 553, 184 So. 91 (Fla.
1938); and Waterman v. Higgins, 28 Fla.
660, 10 So. 97 (1891).
In Supple v. Supple, 370 So.2d 834
(Pla. 3d DCA 1976) and Severi v. Neville,
361 So.2d 786 (Fla. 4th DCA 1978), con-
veyances were upheld where there was both
a family relationship and the provision
of services as consideration supporting
the deed. In Vasquez v. Santisteban, 334
So. zd 97 (Fla. 3d DCA 1976), the lack of
monetary consideration was rejected as a
ground for setting aside an intra-family
conveyance, but the case is much more
Significant and interesting for the bur-
den it placed on a judgment creditor
seeking to establish that the conveyance
was fraudulent.15 In Southern Life Ins.
& Trust Co. v. Cole, 4 Fla. 359 (1852), a
15See Neal v. Gregory, 19 Fla. 356
(1882), where the lack of considera-
tion was one factor in setting aside a
fraudulent conveyance.
47a
ia
deed of conveyance of a mortgage was set
aside and the Court made the statement
that in the absence of “consideration of
benefit or advantage to the grantor, or
of detriment to the grantee, to support
these deeds,“ they must be declared "nuda
pacta.” But it should be noted that the
conveyance there, a mortgage executed
along with a note, was an integral part
of an understanding which the Court found.
to be contractual in character and, the
bargained-for consideration not having
materialized, the Court set the mortgage
aside. The case certainly does not stand
for the proposition that there can be no
such thing as an absolute deed of gift.
We can find no reported Florida
appellate court case in which a deed was
set aside soley on the ground of iack of
48a
consideration existing to support’ the
deed except Havris and the district court
decision in the instant’ case. We
conclude that the case law of Florida
does not support the proposition that the
historical equitable requirement of
valvable or good consideration to support
enforcement of the deed of bargain and
sale or of covenant to stand seised,
respectively, is -party of the law of
y Florida now applicable to deeds
generally. As the above-quoted scholarly
™ article by Mr. Rood advises, we believe
the formal requirements for conveyances
are found in the conveyancing statutes.
4 Neither sections 689.01 - .03, Florida
Statutes (1977), nor section 689.09 for
that matter contain any mention of a
™% requirement of consideration.
To the extent, however, that there is
4 doubt in the law of Florida as to the
49a
requirement of consideration when
ownership of land is trarsferred, we find
that it is conclusively resolved against
such a requirement by the state constitu-
tional law of homestead.
In 1968, a new and substantially
revised state constitution was adopted by
the electorate of Florida. See House J.
Res. 1-2X; Sen. J. Res. 4-2X; Sen. J.
Res. 5-2X (1968). Among the changes was
an amendment to the provisions on exemp-
tion of homesteads from forced sale.
Article xX, section 1 of the Florida
Te 1885 provided for protec-
tion of homesteads from "forced sale
under process of any court," and that "no
judgment or decree or execution shall be
a lien upon exempted property except as
provided in this Article." As a con-
comitant incident of this basic constitu-
tional policy, property covered by the
50a
homestead exemption was not subject to
being freely devised by the owner if
® there were surviving spouse or children.
é Art. X, $ 4, Fla. Const. of 1885.
| However, article X, Section 4 of the
Florida Constitution of 1885 does not
prohibit the holder of homestead property
from “alienating his or her homestead so
exempted by deed or mortgage duly exe-
cuted by himself or herself, and by hus-
® bana and wife, if such relation exists."
| Pursuant to article X, section 4, this
Court held that the holder of homestead
Sproperty, joined by the spouse if
; married, could convey the property, even
Bic there were children to whom it would
descent upon the death of the owner, but
Ponly for aevaluable consideration.
Regero v. Daugherty, 69 So. 2d 128 (Fla.
1953); Daniels v. Mercer, 105 Fla. 362,
141 So. 189 (1932). This holding was in
5la
a ae
keeping with the constitutional policy of
preserving the family homestead as a
means of providing continued shelter to
the family. Without valuable con-
sideration, a conveyance of the homestead
was void. See, e.g., Reed v. Fain, 145
So.2d 858 (Fla. 1962).
Article xX, section 4 of the Florida
Constitution, as revised in 1968, provi-
des in pertinent part: "The owner of
homestead real estate, joined by the
spouse if married, may alienate’ the
homestead by mortgage, sale or gift...
-" The change from language allowing
"alienating by deed or mortgage" to
language allowing the owner to "alienate
- « » by mortgage, sale, or gift” has the
clear and unequivocal effect of
authorizing the owner of homestead pro-
perty, joined by the spouse if married,
52a
to give away the homestead property, that
is, to convey it by deed without con-
sideration. Nothing in the 1968 consti-
a tution appears to limit this provision
@ authorizing the owner to give away the
; property. Thus there is no requirement
* that the grantee be related to the gran-
tor by consanguinity or marital affinity.
Because the constitutional law of
homestead protection has been changed to
;} eliminate the requirement of a valuable
q consideration as a condition of any con-
veyance of homestead property, we
conclude there should be no such limi-
tiation on the right to alienate by gift
real property in general. )
shomestead, which it is the policy of the
law to protect and preserve in the
Beanily, may be conveyed away by deed of
4 gift, we see no reason why the same rule
q should not apply to all property. We
53a
therefore hold that there does not need
to be consideration in order for an owner
of land to convey it by deed to another
person.
It follows from our holding that the
estate of Mrs. Ross is not entitled to
have the deed set aside on the ground
that it was void. Nor does the estate
have any equitable claim superior to that
of the subsequent purchasers and mortga-
gee on the ground that they had notice of
the defect in the deed, because there was
no defect in the deed.
We deem it advisable to caution
against too broad an interpretation of
our holding. It should be obvious that
our opinion does not in any way affect
the existing law of Florida under which
consideration is required to support
contractual undertakings of any kind
whether characterized as contracts, cove-
54a
nants, promises, agreements, or the like.
Nor do we intend our ruling to eliminate
all cognizance of the existence of con-
sideration in land conveyancing when it
is properly relevant to some _ legal
question. We hold only that a deed, suf-
ficient in form, voluntarily executed by
a competent grantor, is effective to con-
vey the owner's legal title regardless of
we whether he receives a contractual con-
Sideration. We do not intend to change
4 any part of that body of the law that
i treats purchasers for consideration dif-
ferently from gratuitous grantees for
f purposes of establishign title priorities
§ under the recording statute, section
695.01, Florida Statutes (1983), Moyer v.
Clark, 72 So.2d 905 (Fla. 1954), Zachary
Veneer Co. v. Engelken, 136 Fla. 89, 186
So. 813 (1939); Black v. Skinner Mfg.
Co., 53 Fla. 1090, 43 So. 919 (1907);
55a
Stockton Vv. National Bank of
Jacksonville, 45 Fla. 590, 34 So. 897
(1903), or common-law legal or equitable
principles. See, e.g., Myers v. Van
Buskirk, 96 Fla. 704, 119 So. 123 (1928).
Nor does our holding say anything about
the right of a gratuitous grantee to
obtain reformation of a deed in equity.
See, e.g., Harrod v. Simmons, 143 So.2d
717 (Fla. 2d DCA 1962). Nor do we mean
to make any statement of law regarding
the significance of consideration or the
lack thereof when a deed is challenged as
a fraudulent conveyance, see, e€.g.,
Sample v. Natalby, 120 Fla. 161, 162,
So. 493 (1935), or as having been pro-
cured by fraud, coercion, or undue
influence. See e.g., Peacock v. DuBois,
90 Fa. 162, 105. So. 321 (1925).
In this connection, we point out again
that the complaint to cancel the deed in
56a
ew en
this case was based entirely on the lack
of a valuable consideration and did not
allege fraud, coercion, or undue
influence.
Finally and perhaps most importantly,
our holding is not intended to detract in
any way from the power of a court of
equity, in a proper case, to order can-
cellation or rescission of a deed for
lack or failure of consideration where
consideration is demonstrably intended by
the parties as part of the transaction
and where such relief is sought on proper
|} equitable grounds. We only hold that an
owner of land may make a gift of it to
another person regardless of family or
marital relationship.
Our holding that an owner of land
generally may convey it without con-
sideration to any person the grantor
57a
chooses is a rational and realistic posi-
tion, more in keeping with the prac-
ticalities of modern land conveyancing
than the Havris rule, rooted as it is in
the practices of four and a half cen-
turies ago. See, e.g., American Foam
Industries, Inc. v. State Dept. of
Revenue, 345 So.2d 343 (Fla. 3d DCA 1977)
(quitclaim deed from sole stockholder to
corporation without- consideration
required only minimum number of documen-
tary stamps).
The decision of the district court of
appeal on the question of the validity of
the deed is quashed with directions that
the case be remanded to the trial court
for entry of a judgment for petitioner-
defendant Chase Federal Savings and Loan
Association. As has already been indi-
cated, we also quash the district court's
decision on the scope of its en banc
ee ee
authority.
It is so ordered.
ADKINS, ALDERMAN and SHAW, JJ., Concur.
OVERTON, J., Concurs in part and dissents
in part with an opinion.
EHRLICH, J., Concurs in part and dissents
in part with an opinion, in which
McDONALD, J., Concurs,
McDONALD, JR., Dissents in part with an
opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE
REHEARING MOTION AND, IF FILED,
DETERMINED.
OVERTON, Je, concurring in part
dissenting in part.
I fully concur with that part of the
majority opinion which holds that a
district court of appeal has the en banc
authority “to adopt the standard of
59a
conflict it believes necessary or
appropriate in order to harmonize the
decisions of the court and avoid costly
relitigation of similar issues within its
appellate district." That is the issue
that gave this Court jurisdiction in this
cause, by way of the question certified
by the district court,
For the following reasons I strongly
dissent from the portion of the majority —
opinion holding there was no defect in
the deed from the 90-year-old-woman to
the young man, a non-relative who is
referred to in one portion of the
district court of appeal's opinion as a
"con man." In my view, the majority's
decision provides a means to protect
title to real property for gigolos,
mistresses, and con artists, and alters
four and one-half centuries’ of common law
in the process.
60a
In determining the validity of a con-
vyeyance, it is necessary to cousider cer-
tain established legal principles and
definitions. "Good consideration" and
"valuable consideration" are terms of art
with established legal meanings. The
term “valuable consideration" means that
the grantor has received something of
value, such as services or money, for the
conveyance of the property. See 3 Am.
Jur. 2d Deeds § 91 (1968); 17 C.J.S.
Contracts § 92 (1963); Words and Phrases,
"Valuable Coinsideration" (1972). The
term “good consideration" denotes con-
Sideration based on a natural duty which
exists between relatives by blog or
marriage. The consideration is stated to
be founded on love and affection, as a
result of the natural duty that flows
from the relationship. See 23 Am. Jur 2d
Deeds § 92 (1968); 17 C.J.S. Contracts §
6la
92 (1963); Words and Phrases, “Good
Consideration" (1972).
In Peacock v. DuBois, 90 Fla. 162, 105
So. 321 (1925), Mrs. DuBois, a woman in 7
her late fifties who was facing a serious |
operation, conveyed her home to a 28-year
old man who boarded in Mrs. DuBois‘ house |
for the three-month period preceding her 4
death. In affirming the cancellation of
the deed, This Court quoted with approval
a decision of the Pennsylvania Supreme
Court holding that
where a conveyance was made by a
weak and sickly young man to a
‘woman older than himself, and who
had been to him as a mother, a
presumption arose that such con-
veyance was obtained by undue
influence.
Id. at 166, 105 So. at 327 (emphasis
added). This Court noted in the Peacock
decision that Mrs. DuBois was not bound
to the young man “by love and affection,"
and stated:
62a
The fact of the execution of the
deed on the showing made by the
record, we think, imposes on the
appellant the duty of showing that
the transaction was bona fide and
that it was not secured by undue
‘influence.
Id. at 167, 105 So. at 323 (emphasis
added). This rule establishing a pre-
sumption of invalidity when there is no
consideration for the conveyance was
reaffirmed by this Court in a_e case
involving a dispute between a mother and
her son over title to real property in
which this Court quoted with approval the
following statement:
inadequacy of consideration, where ,
shown, is an element which is
always given great weight by
courts of equity in determining
whether a transaction involving
the transfer of valuable property
by one to another is unconscien-
tious or constructively fraudulent
or perhaps as tending to prove
actual fraud. Indeed, it has
always been looked upon by such
63a
courts as sufficient to create a
strong suspicision that the trans
Saction has not been characterized
by ood faith in the rt
securing benefits thereb at to
cast upon him the burden of makin
it rFecti Clear that it was in
all respects honest and fair and
just to the grantor.
Stovall v. Stokes, 94 Fla. 717, 743, 115
So. 828, 837 (1927) (quoting Lynch v.
Lynch, 22 Cal. App. 653, 661, 135 P.
1101, 1104 (Cal. Dist. Ct. App. 1912)
(emphasis added). This Court has also
approved a parol gift of land contrary to
the Statute of Frauds providing conclu-
Sive proof exists of the following
elements: "(1) words showing an intent
to give the land, (2) that possession was
taken in reliance on the gift, and (3)
that the donee made permanent '§ and
valuable improvements in anticipation of
the gift, with the donor's acquiescence."
Green v. Price, 63 So. 2d 337, 338 (Fla.
1953).
64a
8 ee ee ee ee
ke eh he i itd a a
Re een ANE Se ee OOS oe
In the instant case, the deed in issue
stated on its face that the consideration
for the conveyance was "love and
affection." Nothing on the face of the
deed indicated Mr. Cournoyer was related
to the grantor, Mrs. Ross. The law is
} well-established that for "consideration"
to be derived from "love and affection,”
there must be a "natural duty" which
flows only from a family relationship by
blood or marriage. Because Mrs. Ross and
Mr. Cournoyer’ shared no family rela-
tionship, "good consideration" as that
term is defined, did not exist. Under
existing law, for the conveyance to be
valid, the beneficiary must’ establish
that the transaction was not the result of
undue influence, fraud, or unconscionabi-
lity. When, as here, it is apparent on
Mthe face of the deed that the conveyance
is without consideration, any subsequent
65a
purchaser of the property takes title
with notice of that defect. In my view,
one who purchases property from the bene-
ficiary of this type of conveyance must
obtain other evidence of donative intent
of the grantor to ensure that valid title
can be conveyed.
I am also concerned that the decision
on the merits of this case is directed
towards an issue that was not seubenved or
addressed by the trial court, the
district court of appeal, or this Court
in the first appeal. The issue initially
argued and addressed was whether the
purchasers of the property from Mr.
Cournoyer and their mortgagee were bona
fide holders for value without notice. I
am concerned by the fact that this Court
is deciding an extremely important pro-
perty law issue on the basis of research
66a
Court, without full use of the adversary
system and an opportunity for all parties
to fully brief and address the question
we now answer.
I reject for two reasons the conten-
Stion that the change in the 1968
EConstitution, article xX, section 4,
should control the result reached in this
case. First, as noted, prior to the
| adoption of the 1968 Constitution, this
Court recognized that a gift of real pro-
perty could be made in limited cir-
cumstances. Second, in the official
analysis of the proposed constitution
submitted by the legislature to the
me voters for ratification at the November
75, 1968, general election, the change to
Bthe provision in issue is explained as
follows:
67a
[T]he right of a married owner to
directly transfer by deed the
title of the homestead to himself
and his spouse as an estate by the
entirety would be given constitu-
tional status. Also, the
Legislature would be directed to
provide a method of alienating or
encumbering homestead property
where either the owner or spouse
is incompetent.
Draft of Proposed 1968 Constitution, Art.
X, § 4 analysis of proposed revision
(July 20, 1968). No explanation of the
major change addressed in the majority
opinion was stated or implied.
EHRLICH, J., concurring in part and
dissenting in part.
An oft-noted feature of Florida's
judicial organization is that our
district courts of appeal are intended to
be, in most cases, courts of last resort.
Johns v. Wainwright, 253 So.2d 873 (Fla.
1971); Karlin v. Miami Beach, 113 So.2d
551 (Fla. 1959); Ansin v. Thurston, 101
So.2d 808 (Fla. 1958). Today's decision
68a
merely serves to reemphasize the finality
of the district courta' jurisdiction.
The courts of appeal establish a
coherent and consistent body of precedent
for the courts in that district. Our
jurisdiction to review their decisions is
the exception, rather than the rule. In
light of this constitutionally imposed
responsibility, taking it upon ourselves
to define intra-district conflict for the
districts themselves would be
overreaching and presumptuous.
Our conflict jurisdiction attaches
when districts are in express and direct
conflict on the same question of law.
Ast. Veo § 3403913), Fla. Const. We
should not expand our jursidiction by
reviewing differences in internal proce-
‘dures which do not hinder the statewide
administration of justice.
I would approve the decision of the
69a
district court of appeal on the issue of
whether love and affection are sufficient
consideration for a deed.
McDONALD, J., Concurs.
McDONALD, Je, dissent in part.
I will accept, for the moment, that a
person may convey property to a nonfamily
member without consideration. But I am
strongly of the view that such a con-
veyance is voidable upon a showing of
undue influence or fraud on the part of
the grantee. When a conveyance is to a
nonfamily member and the consideration is
plainly described as love and affection,
it should alert all successors in title
that the transaction may be suspect and
subject to being voided. A grantor, or
his heirs, should be able to rescind such
a transaction and that person should be
favored with a presumption of fraud or
undue influence under the circumstances.
Should the grantee dispel this presump-
tion, such a suit for cancellation would
fail. Should the grantee fail in this
regard, the deed should be voided,
together with voiding any successive
transaction.
This cause should be remanded to the
trial judge for him to decide the issue
of fraud and undue influence in reference
to the conveyance from Ross to Cournoyer.
Jla
SUPREME COURT OF FLORIDA
No. 63,017
CHASE FEDERAL SAVINGS AND
LOAN ASSOCIATION, Petitioner,
vs.
JERRY B. SCHREIBER, etc., Respondent.
(July 26, 1984)
Overton, J.
This is a petition to review an en
banc decision of the Third District Court
of Appeal reported as Schpeiber v. Chase
Federal Savings & Loan Association, 422
So. 2d 911 (Fla. 3d DCA 1982), in which
the members of the district court were in
disagreement as to the standard to be
used in determining when intra-district
decisional conflict exists to allow the
district court to sit en banc to har-
72a
monize its decisions. The district court
certified the following question to be of
great public importance:
What is the proper scope of review
for district courts of appeal in
granting rehearings en banc?
We have jurisdiction. Art. V., §
3(b)( 4), Fla. Const. We answer the cer-
tified question by holding that’ the
district courts of appeal, in exercising
their en banc power, are not limited by
the case-law standards adopted by the
Supreme Court of Florida in the exercise
of its discretionary conflict jurisdic-
tion. We hold that the district courts
are free to develop their own concept of
decisional uniformity.
The case which precipitated the cer-
tification of the question concerning the
scope of en banc review involves the
validity of a deed to a grantee, not
related to the grantor by blood or
73a
marriage, in which the stated con-
Sideration was "love and affection." The
specific issue is whether a deed which
shows on its face that the consideration
is "love and affection," but does not
show on its face that the grantor and
grantee are related by blood or marriage,
places a subsequent grantee on notice
that the deed may be void.
The uncontroverted facts reflect that
Peter Cournoyer induced Theadores Ross, a
lady ninety years of age, to transfer
title in her home to him by a quitclaim
deed which stated that "[t]his quitclaim
deed is being given with the con-
sideration being love and affection."
The deed was recorded with the minimum
amount of documentary stamps affixed.
Cournoyer then sold the property to Luis
and Gladys Perez for $50,000. The
Perezes obtained the major portion of the
74a
— ae
purchase price from mortgage proceeds
supplied by Chase Federal Savings and
Loan Association. The Perezes proceeded
to close the transaction without a
lawyer, asserting that they were relying
on Chase Federal and its lawyers in
closing the transaction.
After Cournoyer sold the property to
the Perezes, Ross sought to cancel her
deed to Cournoyer, Cournoyer's deed to
the Perezes, and the Perezes' mortgage to
Chase Federal, on the ground that the
original deed to Cournoyer was void for
lack of consideration. The trial court
found "there was no consideration for the
execution of . . . [the deed to
Cournoyer] with the exception of love and
affection and therefore equitable title
and interest in the subject property
remained" in Ross. The trial court
concluded, however, that "legal title did
75a
pass from Cournoyer to the Perezes
because the Perezes were "bona fide
purchasers having paid a valuable con-
sideration without notice of any infir-
mity, and therefore their title to the
subject property and interest in the sub-
ject property respectively shall stand."
Finally the trial court, holding that a
constructive trust arose for the benefit
of Ross in the proceeds of the sale
received by Cournoyer in the sale to the
Perezes, entered a judgment for Ross
against Cournoyer in the amount of
$50,000.
Ross appealed the trial court's denial
of her claim for cancellation of the
deeds and mortgage, asserting that the
Perezes, as purchasers, and Chase
Federal, as mortgage-holder, did not have
val’d interests in the property because
there was notice on the face of the deed
76a
pte
Bee's,
oe:
to Cournoyer that the consideration was
legally insufficient. Therefore, Ross
contended, the Perezes were not bona fide
purchasers for value without notice and
Chase Federal could not claim a valid
mortgage on the property. In a per
curiam opinion, a three-judge panel of
the district court rejected Ross's argu-
ment and affirmed the trial court's
order. Judge Schwartz dissented. A
majority of the district court, however,
granted Ross's motion for rehearing en
banc. A majority of the en banc court
considering the cause on the merits re-
versed the trial court, holding that
under the district court's prior decision
in Florida National Bank & Trust Co. v.
Havris, 366 So. 2d 491 (Fla. 3d DCA
1979), a deed given to a non-relative in
return for love and affection is invalid
for lack of consideration. In so holding
77a
the district court found that the Perezes
and Chase Federal were on notice to make
inquiry concerning the propriety of
Ross's deed to Cournoyer since the only
cousideration it reflected was "love and
affection." The district court then
remanded the cause with directions to
cancel the deeds to Cournoyer and the
Perezes and the mortgage to Chase Federal.
The district court sitting en banc was
in disagreement as to the standard to
apply to determine whether there was
conflict between the decision of the ini-
tial three-judge panel of the district
court in the instant case and _ the
district court's previous decision in
Havris. In the initial panel decision,
as previously stated, the majority per
curiam affirmed the trial court, with
Judge Schwartz writing a dissent. The
dissent asserted that the majority failed
ORR AREY 5
to properly apply Havris. In Havris, an
action was brought by the grantor to can-
cel a deed to the unrelated grantee on
the ground that the deed was not sup-
ported by consideration, which was stated
as love and affection. As noted, the
district court held that "love and
affection" did not constitute valid con-
Sideration where the conveyance was be-
tween persons unrelated by blood or
marriage and that the deed was invalid.
In the instant case, four judges of the
en banc panel [Schwartz, Hendry, Pearson,
and Jorgenson] believed that there was "a
lack of uniformity" between Havris and
the initial panel decision here. These
judges believed that Florida Rule of
Appellate Procedure 9.331 allowed the
district court to sit en banc in this
case in order "to maintain uniformity of
decisions." Four other judges of the en
79a
banc panel [Nesbitt, Hubbart, Barkdull,
and Baskin] believed that the district
court had no authority to sit en banc in
this case because the controlling facts
in Havris and this case were not the
same. According to these four judges,
there was no direct conflict between
Havris and this case under the standard
used by the Supreme Court of Florida in
exercising its conflict jurisdiction.
These four judges concluded that they
were obligated to follow the precedent
established in Nielsen v. City of
Sarasota, 117 So. 2d 731, 734 (Fla.
1960), which defined decisional conflicts
as:
(1) the announcement of a rule of
law which conflicts with a rule
previcusly announced by this
[Florida Supreme] Court, or (2)
the application of a rule of law
to produce a different result in a
case which involves substantially
the same controlling facts as a
80a
prior case disposed of by this
§ [Florida Supreme] Court.
=(Emphasis in original emphasis added).
one judge of the en banc panel [Ferguson]
agreed that Nielsen provided the correct
Metandard to be used by the district
ourts in determining conflict for en
banc purposes, but believed that under
3 hat standard conflict existed between
WHavris and the initial panel decision in
he instant case.
Judge Nesbitt, in a dissenting opinion
M-oncurred in by four other members of the
Wecourt, expressed the view that since the
Wen banc rule was established to resolve
Wintra-district conflict which was for-
q erly resolved by the Supreme Court, then
Whe power exercised by the district
ourts to hear en banc proceedings must
be the same as the standard adopted by
he Florida Supreme Court in the exercise
8la
of its discretionary conflict jurisdic-
tion. Judge Nesbitt further asserted
that any change in the definition of
conflict by broadening the _ present
Florida Supreme Court standard would be
unconstitutional. Judge Hubbart wrote a
dissenting opinion in which he agreeed
with Judge Nesbitt and detailed the
history of Florida's en banc rule.
We respectfully reject the
interpretation that the district courts,
in exercising their en banc powers, are
limited by the case-law standards adopted
by the Supreme Court of Florida in the
exercise of its discretionary conflict
jurisdiction. We have held the en banc
process to be constitutional and have
Stated that “[t]Jhe district courts are
free . . . to develop their own concept
ef decisional uniformity.” In re Florida
Rules of Appellate Procedure, Rule 9.331,
\
374 So. 2d 992, 994 (Fla. 1979), as
modified in 377 So. 2d 700 (Fla. 1979),
and as further modified in 416 So. 2d
1127 (Fla. 1982).
In holding the en banc process consti-
tutional, we construed the "three judges
shall consider each case" language of
article V, section 4, as not restricting
the district courts from hearing cases en
banc. Our decision was consistent with
the decision of the United States Supreme
Court in Textile Mills Securities Corp.
v. Commissioner, 314 U.S. 326 (1941). In
Textile Mills, the United States Supreme
Court upheld the inherent authority of
the Third Circuit Court of Appeals to
establish a procedure for that court to
Sit en banc without authorization by
existing rule, statute, or constitutional
provision. See Hearing and Rehearing
Cases En Banc, 14 F.R.D. 91 (3d Cir.
1953); Commissioner v. Textile Mills
Securities Corp., 117 F.2d 62 (3d Cir.
1940). In construing the statutory provi-
Sion establishing the federal circuit
courts of appeals, the United States
Supreme Court concluded that the proviso
that there should be a circuit court of
appeals in each circuit "which shall con-
Sist of three judges" did not prohibit an
en banc process and that the court was
not restricted to deciding cases with
only three judges. In approving this en
bane process, the United States Supreme
Court commented that it was a means of
"more effective judicial administration"
and determined that "[cJonflicts within a
circuit will be avoided. Finality of
decisions in the circuit courts of
appeals will be promoted." 314 U.S. at
335. It should also be noted that in a
subsequent case the United States Supreme
84a
Court reaffirmed this view and held that
th en banc process was an expression of
the court's power rather than a party's
right. Western Pacific Railroad Corp.
v. Western Pacific Railroad Co., 345
U.S. 247 (1953). In Western the Court
held that although a litigant does not
have a right to an en banc hearing, the
litigant must be given an opportunity to
request such a hearing.
The federal en banc process is broader
than that provided in Florida Rule of
Appellate Procedure 9.331 because, in
addition to addressing issues of
conflict, the federal process allows the
courts of appeal to sit en banc to hear
cases of "exceptional importance." When
this Court adopted rule 9.331 in 1979, we
decided that there was no need to
authorize the en banc process in the
district courts except for use in the
85a
settlement of intra-district conflict to
help reduce the then-existing caseload of
the Florida Supreme Court.
The en banc seedéee now authorized for
the district courts is designed to help
the district courts avoid conflict,
assure harmonious decisions within the
court's geographic boundaries, and deve-
lop predictability of the law within
their jurisdiction. Consistency of deci-
Sions within each district is essential
to the credibility of the district
courts. There has been criticism of
intermediate appellate courts for their
failure to speak with "a single voice of
the law." Meador, An Appellate Court
Dilemma and a Solution Through Subject
Matter Organization. 16 U. Mich. J.L.
Ref. 471, 474 (1983). As judges are
added to Florida's district courts to
meet expanding caseloads, the resulting
increased number of three-judge panels
cannot help but increase the number of
inconsistent and conflicting decisions.
When there is a general rotation of
Florida's district court judges among
three-judge panels, the increased number
of panel combinations compounds’ the
problem. With a five-member court, the
number of different panel combinations is
ten. With a twelve-member court,
however, the number of panel combinations
is 220. The en banc process provides a
means for Florida's district courts to
avoid the perception that each court con-
sists of independent panels speaking with
multiple voices with no apparent respon-
sibility to the court as a whole. The
process provides an important forum for
each court to work as a unified collegial
body to achieve the objectives of both
finality and uniformity of the law within
each court's jurisdiction. We have pre-
viously said that
C{uJnder our appellate structural
scheme, each three-judge panel of
a district court of appeal should
not consider itself an independent
court unto itself, with no respon-
sibility to the district court as
a whole. ° ° °
e e « o
- « « We would expect that,
in most instances, a three-judge
panel confronted with precedent
with which it disagrees will
Suggest an en banc hearing. ...
Consistency of law within a
district is essential to avoid
unnecessary and costly litigation.
416 So. 2d at 1128. We expressly granted
the district courts broad discretionary
authority "to develop their own concept
of decisional uniformity" to be able to
fully carry out these expressed purposes.
374 So. 2d at 994. In regard to the ori-
ginal panel decision in the instant case
and the district court's decision in
Havris, we agree with Judge Schwartz that
88a
it would be difficult for the legal pro-
fession to harmonize these decisions.
With regard to the merits of the
instant case, we agree that, in accor-
dance with the district court's decision
in Havris, a deed given to a non-relative
in return for "love and affection" is
without consideration and is invalid. We
further find that since the deed in issue
from Ross to Cournoyer expressed on its
face that it was for "love and affection"
and did not indicate that the grantor and
grantee were related by blood or
Marriage, the Perezes and Chase Federal
were placed on constructive notice that
the deed may have been invalid and they
had the minimal duty to inquire as to
whether such ae relationship in fact
existed between Ross and Cournoyer. See
Lassiter v. Curtiss-Bright Co., 129 Fla.
728, 177 So. 201 (1973); Sapp v. Warner,
89a
105 Fla. 245, 141 So. 124 (1932); First
Federal Savings and Loan Association v.
Fisher, 60 So. 2d 496 (Fla. 1952);
Leffler v. Smith, 388 So. 2d 261 (Fla.
5th DCA 1980), review denied, 397 So. 2d
778 (Fla. 1981).
Accordingly, we hold that the district
court of appeal, in implementing the pro-
visions of the en banc rule, has the
authority to adopt the standard for
conflict it believes necessary to har-
monize the decisions of its court and
avoid costly relitigation of similar
issues in its jurisdiction. We approve
the majority decision in the instant case
to cancel the deeds to Cournoyer and the
Perezes and the Chase Federal mortgage,
and the remand for further proceedings.
It is so ordered.
MCDONALD, EHRLICH and SHAW, JJ, Concur.
90a
ALDERMAN, Jeo, Concurs in part and
dissents in part with an_- opinion.
BOYD, C.J., Dissents with an opinion.
ADKINS, J. Dissents.
NOT FINAL UNTIL TIME EXPIRES TO FILE
REHEARING MOTION AND, IF FILED,
DETERMINED.
ALDERMAN, Jon concurring in part,
dissenting in part.
I concur with that portion of =the
majority opinion which defines the proper
scope of review for district courts of
appeal in granting rehearings en banc. I
dissent, howater, from this Court's reso-
lution of the merits of this dispute and
its approval of the district court's
decision to cancel the deeds to Cournoyer
and the Perezes and the Chase Federal
mortgage. Rather, I concur with that
portion of Chief Justice Boyd's
dissenting opinion which addresses the
merits of this case.
9la
BOYD, C.J., dissenting.
I dissent to the majority opinion on
numerous grounds. First, the so-called
"en banc rule" establishes appellate tri-
bunals not authorized by the constitution
of Florida. Second, if we are to have en
banc reconsideration of district court
decisions in order to eliminate intra-
district decisional conflict, the concept
of conflict for such purpose should be
the same as was applied to this Court's
conflict certiorari jurisdiction prior to
the 1980 constitutional amendment.
Third, on the merits of the dispute over
the property that Theodores Ross twice
conveyed by deed to Peter Cournoyer, I
believe that the trial court, the
district court, the "en banc" tribunal,
and this court have all applied incorrect
statements of the law.
As I have pointed out on numerous
92a
occasions, Florida Rule of Appellate
Procedure 9.331 has the effect’ of
creating new courts. New courts may not
be created by promulgation of a rule of
procedure because article V, section 1
provides that only the courts created
therein are recognized as courts.
Article V, section 4(a) of the Florida
Constitution provides: "Three judges
shall consider each case and the con-
currence of two shall be necessary to a
decision." Three district court judges
constitute the appellate court under
article V, section 4(a). It is highly
Significant that the word "panel" does
not appear in article V, section 4(a).
See In re Rule 9.331, Determination of
Causes By A District Court of Appeal En
Banc, 388 So. 2d 1235, 1236 (Fla. 1980,
(Boyd, J. dissenting); In re Rule 9.331,
Determination of Causes By A District
93a
Court of Appeal En Banc, 374 So. 2d 992,
994 (Fla. 1979) (Boyd, J., dissenting);
see also In re Rule 9.331, Determination
of Causes By a District Court of Appeal
En Banc, 377 So.2d 700 (Fla. 1979).
Assuming, however, as the majority of
the Court has, that the constitutional
problems have been properly resolved, I
dissent also to the Court's ruling on the
question presented by the certified
question. Rule 9$.331 was first pro-
mulgated prior to the 1980 constitutional
amendment narrowing the Supreme Court's
jurisdiction and withdrawing the power to
review decisions on the ground of intra-
district conflict. At that time there
was an understanding that this new rule
would permit the district courts’ to
resolve intra-district conflict as that
concept has developed through the juris-
dictional decisions of this Court.
"Conflict" as used in the sense of cer-
tiorari jurisdictional conflict of deci-
sions was stated to be the equivalent of
the ground for seeking rehearing en banc.
See In re Rule 9.331, 377 So.2d 700 (Fla.
1979) (Commentary at 701). Thus, when
the 1980 amendment was adopted, there was
an understanding that the new rule would
dovetail nicely with the new constitu-
tional provisions and would enable the
district courts to take beer the burden
of eliminating intra-district conflict in
the cases being shifted away from this
Court. See In Re Rule 9.331, 416 So.2d
1127, 1127 (Fla. 1982).
The majority opinion broadens’ the
scope of en banc rehearings beyond that
originally envisioned. The concept of
intra-district conflict should be
strictly limited to have the same scope
as did "“conflict"™ for purposes of the
95a
exercise of this Court's jurisdiction
prior to the 1980 amendment. We should
adhere to this strict standard of
conflict. Using this standard, I
conclude that there was no conflict bet-
ween the district court's original deci-
Sion in this case and the case of Florida
National Bank & Trust Co. v. Havris, 366
So. 2d 491 (Fla. 3d DCA 1979). Therfore,
there should have been no grant of an en.
bane rehearing.
I come now to the merits of the
dispute giving rise to this litigation.
In the first place, the basic premise of
the argument made on behalf of the late
Mrs. Ross, and accepted by the trial,
appellate, en banc, and supreme courts,
is erroneous as a matter of plain fact.
That premise is that the deed did not
recite a monetary consideration for the
conveyance. Both the initial formally
deficient deed and the later corrective
deed executed by Mrs. Ross contained a
recitation of monetary consideration.
The fact that the latter instrument also
contained a superfluous reference to
"love and affection" did not render the
deed invalid and was not sufficient to
put a subsequent purchaser for value on
notice of any defect in the grantee's
title for lack of a familial relationship
between grantor and grantee.
It is said that in Florida a deed,
because it operates to pass title under
the Statute of Uses, must be supported by
consideration in order to be effective.
However, doubt has been cast on the
accuracy of this statement of the law,
one reason being that there is no mention
of a requirement of consideration in the
Florida conveyancing statutes. See §§
689 .01-.03 Fla. Stat. (1977). While a
97a
promise to convey land must, under essen-
tial principles of contract law, be sup-
ported by consideration, the preeminent
scholar of Florida property law tells us
that there is no good reason to require a
deed, as a fully executed instrument, to
be similarly supported. 1 R. Boyer,
Florida Real Estate Transactions § 11.01
(1983). The same scholar also observes
that the better rule under modern prac-
tice is that where a deed does not recite
consideration, it should simply be pre-
sumed that a gift was intended. Id. at
180. He adds, however, that "Florida
cases can be found to support almost any
proposition in this area." Id. at 182
(footnote omitted).
I believe that we should clarify the
law and hold that an owner of land has
the right to convey it as a gift to
anyone he chooses, except of course for
conveyances in avoidance of debts or
other legal obligations. For the courts
to restrict the class of possible donees
of deeds of gift to blood or marital
relations burdens the power of alienation
and impinges on personal rights of pri-
vacy and association. Reference to con-
sideration in land conveyancing has
become purely a matter of form, 6A R.
Powell, The Law of Real Property, § 888
(rev. ed. 1982), and we should recognize
it as such.
But even if it be assumed that con-
sideration is a requisite of the effec-
tiveness of a deed to pass title, chere
is nevertheless no requirement that, in
order to be effective, the deed must
recite the consideration received, or
that it recite consideration at all.
See, e.g., Mexican Crude Rubber Co. v.
Ackley, 101 Fla. 552, 134 So. 585 (1930);
99a
Black v. Skinner Manufacturing Co., 53
Fla. 1090, 43 So. 919 (1907).
Furthermore, when consideration is
recited in a deed, such recitation is
conclusive insofar as the effectiveness
of the deed to pass title is concerned.
See Florida Moss Products Co. v. City of
Leesburg, 93 Fla. 656, 112 So. 572
(1927). A grantor who executes a deed
reciting consideration is generally
estopped to deny that there was con-
sideration. Campbell v. Carruth, 32 Fla.
264, 13 So. 432 (1893). Because recita-
tion of consideration is not strictly
necessary, but only a preferred practice
for marketability purposes, under’ the
Court's holding any deed not revealing
the consideration paid would necessarily
require a prospective subsequent
purchaser to inquire into the facts out-
side the title record in order to be sure
100a
that title in fact passed to the grantee.
This holding imposes an intolerable bur-
den on the free alienability and marketa-
bility of real property.
Boyer tells us that
the role of consideration in suits
for avoiding deeds is an ancillary
one, and that the real issue in
most cases is simply the attain-
ment of an equitable result.
Thus, no consideration, failure of
consideration, or even inadequate
consideration are circumstances to
be considered along with others in
deciding whether “raud, undue
enfluence, violation of confidence
or unconscionable advantage
exists.
1 R. Boyer, Florida Real Estate
Transactions § 1101 (1983) (footnote
omitted).
This observation is highly relevant to
the present case because all the courts
that have participated have appeared to
be concerned about the inequitable
enrichment of a so-called “con man" at
10la
the expense of an elderly lady and, now,
her estate.
Contrary to the statement of _ the
majority, the facts of the case are not
"uncontroverted." The law provides reme-
dies for the wrongful procurement of
gifts by fraud, coercion, deceit, or
undue influence. See, e.g., Williamson
v. Kirby, 379 So. 2d 693 (Fla. 2d DCA
1980); Majorana v. Constantine, 318 So.
2d 185 (Fla. 2d DCA 1975). The law even
provides outa presumptions and
lightened burdens of proof in view of the
difficulties of proof of such matters as
fraud and undue influence. Id. Before we
call Mr. Cournoyer a "con man" we should
be satisfied that the evidence supports
such a finding.
It is axiomatic that a court's finding
of fact must be baséd on evidence. It is
equally axiomatic that evidence is only
102a
admissible if relevant to the issues
framed by the pleadings. The complaint
in this case sought cancellation of the
deed on the ground that the only con-
sideration was love and affection and the
parties were not related. As I have
argued above, this should not be enough.
The complaint contains no clear, specific
allegation of facts showing that the deed
from Mrs. Ross to Mr. Cournoyer was pro-
cured by fraud, deceit, coercion, or
undue influence. It is only pursuant to
such an allegation that the lack of a
valuable consideration for the conveyance
becomes relevant.
Even assuming there had been proper
allegations and proof sufficient to
constitute grounds for equitable relief
in favor of Mrs. Ross' estate and against
Cournoyer , there would yet remain the
question of whether the title and
103a
security interests of Mr. and Mrs. Perez
and their lender, the respondent, should
also fail in favor of the estate., This
raises the issue of whether the Perezes
were good faith purchasers for value
without notice of the infirmity affecting
the title of Cournoyer. The en banc
district court and the majority of this
Court take the view that the lack of
recitation of monetary consideration in
the deed from Mrs. Ross to Cournoyer was
sufficient to put the Perezes on notice,
or at least inquiry notice, of the inva-
lidity of the deed to their grantor due
to the lack of family connection. As I
have already said, not only is this view
belied by the document itself as shown in
the record, it is also undermined by a
proper understanding of the law of con-
veyancing. For relief to be granted the
estate against the Perezes there must be
104a
an allegation and proof of some other
factual basis for not recognizing their
bona fide purchaser status. If the
Perezes and their lender had no notice of
the purported defect in the title of
Cournoyer, then the case would call for
the application of the principle that
"where one of two innocent parties must
suffer through the act of a third person,
the loss should fall upon the one whose
conduct created the circumstances which
enabled the third party to perpetrate the
wrong or cause the loss." Niccolls v.
Jennings, 92 So.2d 829, 832-33 (Fla.
1957). Mrs. Ross not once but twice
signed deeds of her - property to
_Cournoyer. There was no evidence that
she dia not know what she was signing or
that she did not intend to convey the
land. An innocent subsequent purchaser's
interest will be protected even when it
105a
is clear that the aggrieved grantor's
execution of the deed of conveyance was
procured by fraud and deceit. McCoy v.
Love, 382 So. 2d 647 (Fla. 1979).
To reiterate the basis of my dissent,
I would hold that the original district
court opinion, although it affirmed an
erroneous trial court judgment, must
Stand because (1) the en banc rule is
unconstitutional and because (2) the en
banc rule was improperly invoked because
there was no conflict. If there were a
proper means for reaching the merits of
the case, I would resolve it as outlined
above.
106a
IN THE SUPREME COURT OF FLORIDA
THURSDAY, JANUARY 2, 1986
CASE NO. 63,017
CHASE FEDERAL SAVINGS AND
LOAN ASSOCIATION,
Petitioner,
vs. :
JERRY B. SCHREIBER, :
Personal Representative
of the ESTATE OF THEADORES:
W. ROSS,
Respondent,
/
District Court of
Appeal, 3d District -
No. 80-1213
On consideration of the motion for
rehearing and clarification filed by
attorneys for respondent.
IT IS ORDERED by the Court that said
motion be and the same is hereby denied.
BOYD, C.J., ADKINS, SHAW AND BARKETT,JJ.,
Concur. OVERTON, McDONALD, and EHRLICH,
JJ., Dissent. ,
107a
IN THE DISTRICT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR DADE COUNTY, FLORIDA
CASE NO. 79-4132 CA Ol
THEADORES W. ROSS, 3
: Plaintiff, :
vs. ;
PETER R. COURNOYER, LUIS :
PEREZ and GLADYS PEREZ,
his wife, and CHASE
FEDERAL SAVINGS & LOAN
ASSOCIATION, :
COMPLAINT
Defendants.:
Plaintiff, THEADORES W. ROSS~ sues
Defendants and says that:
1. This is an action for cancellation
and recission of a Quit Claim Deed,
Warranty Deed and Mortgage.
y During the latter part of 1974
Defendant, PETER R. COURNOYER befriended
Plaintiff, an elderly lady approaching
ninety (90) years of age at her home in
Miami Beach, Florida, after learning that
108a
she was widowed and without relatives.
3. From that time until August 19,
1977, Defendant, PETER R. COURNOYER
endeavored to exercise influence and
control over the Plaintiff by “handling
all her business matters and financial
matters" for her with the appearance that
he was helping her out.
4. The sole intent of the defendant,
PETER R. COURNOYER, in doing so was to
obtain full control over the assets and
property of the Plaintiff which he ulti-
mately succeeded in doing.
_ Throughout that period of time,
Plaintiff's personal property was sold
and disposed of by the Defendant, PETER
R. COURNOYER, and the Defendant, PETER R.
COURNOYER retained the proceeds.
6. Furthermore, throughout that
period of time, Plaintiff was placed in
various nursing and convalescent homes by
109a
the Defendant, PETER R. COURNOYER.
8. On or about March 4, 1977,
Defendant, PETER R. COURNOYER, attempted
by way of Quit Claim Deed executed on
March 4, 1977, by Plaintiff to obtain
possession and control of Plaintiff's
residence located at 4580 Michigan
Avenue, Miami Beach, Florida.
Defendant's attempt failed because the
Quit Claim Deed was witnessed only by one
individual and it was not a valid Deed,
Exhibit A attached hereto and made a part
hereof.
De On or about August 19, 1977,
Defendant, PETER R. COURNOYER, once again
attempted to correct the subject Quit
Claim Deed by receiving a second Quit
Claim Deed, Exhibit B attached hereto and
made a part hereof. Said Quit Claim
Deed, on its face states that said Deed
is "being given with consideration being
110a
love and affection."
10. Defendant, PETER R. COURNOYER, was
not, nor had he ever been any relative of
Plaintiff, either by ‘ blood oor my
marriage.
ll. Defendants, LUIS PEREZ and GLADYS
PEREZ, subsequently purchased the subject
property from Defendant, PETER R.
COURNOYER, an executed a mortgage to
Defendant, CHASE FEDERAL SAVINGS AND LOAN
ASSOCIATION: however, said Defendants can
not claim to be bona fide purchasers
without knowledge, as the Deed to Defen-
dant, COURNOYER was not a Warranty Deed
evidencing a route of title.
> Defendants, LUIS PEREZ, GLADYS
PEREZ and CHASE FEDERAL SAVINGS AND LOAN
ASSOCIATION were on further notice that,
as the subject Deed to Defendant,
COURNOYER, Exhibit B, was for “love and
affection" due care should have been used
llla
to determine whether oor not’ said
Defendant was related to Plaintiff either
by blood or marriage in order to properly
determine whether or not consideration
given by the Defendant COURNOYER, for the
subject property, was in fact sufficient
consideration: or the Deed to Defendant,
COURNOYER, would be void on its face.
13. Plaintiff submits the subject Deed
to defendant, COURNOYER is void and all
subsequent interest in the property,
steming from the subject Deed are there-
for void for failure of consideration.
.14. Plaintiff has been damaged in that
property was improperly taken from her
and disposed of without having received
any benefit from the disposition because
of lack of consideration.
15. Plaintiff is obligated to pay a
reasonable attorney's fee.
WHEREFORE, Plaintiff demands Judgment
112a
for cancellation and recission of the
Quit Claim Deed and subsequent Deeds to
subsequent purchasers and all other
Claims or interest on the property on or
after March 4, 1977, costs of Court, and
a reasonable attorney's fee.
JERRY B. SCHREIBER, C.A.
Attorneyfor Plaintiff
/s/
ll3a
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 79-4132 CA 04
THEADORES W. ROSS, :
Plaintiff, :
vs. :
PETER R. COURNOYER, :
LUIS PEREZ and GLADYS
PEREZ, his wife, and
CHASE FEDERAL SAVINGS
AND LOAN ASSOCIATION, :
Defendants.
/
ANSWER OF DEFENDANT, CHASE
FEDERAL SAVINGS AND LOAN ASSOCIATION
COMES NOW the Defendant, CHASE FEDERAL
SAVINGS AND LOAN ASSOCIATION, a United
States of America corporation, and for
its Answer to Count I of the Complaint as
Amended, states:
1. That this Defendant admits the
allegations of Paragraph 1 of Count l.
ll4a
2. That this Defendant is without
knowledge as to the allegations of
Paragraphs 2, 3, 4, 5, 6, and 10 of said
Count I, therefore denies same, and
demands strict proof thereof.
3. That this Defendant is unable to
plead to Paragraph 7 of Count I inasmuch
as no Paragraph 7 is set forth on the
copy of Count I ferwarded to this
Defendant by counsel for the Plaintiff.
4. That with regard to Paragraph 8 of
Count I, this Defendant admits that there
was executed, with one witness, and then
placed of public record a Quit Claim Deed
dated March 4, 1977, from the Plaintiff
to one PETER R. COURNOYER. The remaining
allegations of Paragraph 8 are denied.
5. That with regard to Paragraph 9 of
Count I, this Defendant admits that there
was executed and then placed of public
record, a second Quit Claim Deed dated
11l5a
August 19, 1977, from the Plaintiff to
one PETER R. COURNOYER. The remaining
allegations of Paragraph 9 are denied.
6. That with regard to Paragraph ll,
this Defendant admits that the
Co-Defendants, LUIS PEREZ and GLADYS
PEREZ, subsequently purchased the pro-
perty from one PETER R. COURNOYER, and
that LUIS PEREZ and GLADYS PEREZ, did
thereupon execute a promissory note and
mortgage in favor of this Defendant, true
copies of which instruments, together
with the loan closing documents, are
attached hereto, made a part hereof, and
designated Defendants Composite Exhibit
A. The remaining allegations of said
Paragraph 1l are denied in their entirety
and should be sricken, pursuant to R.C.P.
1.140 and 1.150.
7. That this Defendat denies the
allegations of Paragraphs 12, 13, and 14
li6a
in their entirety, and demands strict
proof thereof.
AFFIRMATIVE DEFENSES
8. That the Plaintiff has plead no
grounds such as would justify the
recission of this Defendants mortgage.
9. That a court-ordered ~ecission of
such mortgage lien would unjustly enrich
the Plaintiff, whose mortgage, held by
SUN BANK OF WEST MIAMI, with a balance of
principal and accrued interest in the sum
of $10,263.90, was discharged by this
Defendant at the time of its closing with
the Co-Defendants, LUIS PEREZ and GLADYS
PEREZ, his wife.
10. That the Plaintiff is guilty of
estoppel by Deed by virtue of her execu-
tion of Two Quit Claim Deeds in favor of
the Defendant, PETER R. COURNOYER.
abe That the said Quit Claim Deeds
were recorded, and this Defendant is
1l7a
entitled to the proection of Chapter
695.01 to bar the claim of the Plaintiff.
12. That this Defendant is claiming by
and through the Co-Defendants, LUIS PEREZ
and GLADYS PEREZ, who are bona fide
purchasers, which status bars the claim
of the Plaintiff.
i3. That the Plaintiff is guilty of
laches, and is likewise estopped from
presecuting this action.
WE HEREBY CERTIFY that true and
correct copies of the foregoing Answer
were mailed this 17 day of April, 1979
to: JOHN H. DUHIG, ESQ., Attorney for
Defendants, Perez, Suite 1133 City
National Bank Bldg., 25 West Flagler
Street, Miami, Florida 33130, and to
JERRY B. SCHREIBER, ESQ., Attorney for
Plaintiff, Suite 207, Biscayne Bldg., 19
West Flagler Street, Miami, Florida
33130, and to RONALD S. GURALNICK, ESQ.,
1928 One Biscayne Twoer, 2 S. Biscayne
Boulevard, Miami, . Florida 33131.
THERREL, BAISDEN, STANTON,
STILLMAN, BROWN & WOOD
Attorneys for Defendant, CHASE
FEDERAL
wa ge bP iE TE OEE TEAR Fo 0
entitled to the proection of Chapter
695.01 to bar the claim of the Plaintiff.
12. That this Defendant is claiming by
and through the Co-Defendants, LUIS PEREZ
and GLADYS PEREZ, who are bona fide
purchasers, which status bars the claim
of the Plaintiff.
13. That the Plaintiff is guilty of
laches, and is likewise estopped from
presecuting this action.
WE HEREBY CERTIFY that true and
correct copies of the foregoing Answer
were mailed this 17 day of April, 1979
to: JOHN H. DUHIG, ESQ., Attorney for
Defendants, Perez, Suite 1133 City
National Bank Bldg., 25 West Flagler
Street, Miami, Florida 33130, and to
JERRY B. SCHREIBER, ESQ., Attorney for
Plaintiff, Suite 207, Biscayne Bldg., 19
West Flagler Street, Miami, Florida
33130, and to RONALD S. GURALNICK, ESQ.,
1928 One Biscayne Twoer, 2 S. Biscayne
Boulevard, Miami, Florida 33131.
THERREL, BAISDEN, STANTON,
STILLMAN, BROWN & WOOD
Attorneys for Defendant, CHASE
FEDERAL
By _ /s/
Fred R. Baisen, Jr.
118a & 119a
IN THE SUPREME COURT OF FLORIDA
CHASE FEDERAL SAVINGS AND
LOAN ASSOCIATION, Petitioner,
vs.
JERRY B. SCHREIBER, as Personal
Representative of the Estate of
Theodores W. Ross, Respondent.
MOTION FOR RE -HEARING AND
CLARIFICATION
COMES’ NOW, the Petitioner, CHASE
FEDERAL SAVINGS AND LOAN ASOCIATION, by
and through its undersigned attorneys and
pursuant to Florida Rules of Appellate
Procedure 9.330(a), moves this Court to
re-hear this matter and to clarify its
opinion of July 26, 1984 and as grounds
would show:
1. In deciding that, "...a deed given
120a
to a non-relative in return for ‘love and
affection’ is ‘without consideration and
is invalid", the Court has overlooked
Article 10, Section 4(c) of the Florida
Constitution which states in part:
“THE OWNER OF HOMESTEAD REAL ESTATE...
MAY ALIENATE THE HOMESTEAD BY...GIFT..."
The intolerable burden on the _ free
alienability and marketability of real
property imposed by this Court is in
direct conflict with the Constitution of
the State of Florida, which does not
require consideration for the alienation
of one's homestead.
Ze This Court has approved _ the
majority decision of the District Court
of Appeal in the instant case cancelling
the deeds to Cournoyer dated March 4th,
1977 and August 19th, 1977, the deed to
the Perezes dated October 6th, 1977 and
the Chase Federal Mortgage dated October
l2la
6th, 1977.
3. By virtue of cancelling all deeds
and encumbrances subsequent to March 4th,
1977 is this Court also cancelling that
certain mortgage deed dated April 25th,
1977 between Peter R. Cournoyer,
Mortgagor, and Sun Bank of Miami West,
Mortgagee?
4. Said mortgage encumbered the real
property, which is the subject of this
action, and was recorded on May 5th.
1977, under Clerk's file number
77R107281 in Official Records Book 9670
at Page 629 of the Public Records of Dade
County, Florida.
WHEREFORE, Petitioner requests’ that
this Court re-hear argument concerning
the Constitution of the State of Florida
and clarify the status of the mortgage
deed in favor of Sun Bank of Miami West.
WE HEREBY CERTIFY that a true and
122a
correct copy of the foregoing instrument
has been furnished by United States Mail
to JOHN H. DUHIG, Esquire, Attorney for
Perez, Suite 1133, City National Bank
Building, 25 West Flagler Street, Miami,
FL 33130; to THERREL, BAISDEN, STANTON,
WOOD & SETLIN, Esquires, 11l11ll Lincoln
Road, Suite 600, Miami Beach, FL 33139;
to JOSEPH A. MCGOWAN, Esquire, 2131
Hollywood Boulevard, P.O. Box 1456,
Hollywood, FL 33022, and to JERRY B.
SCHREIBER, 207 Biscayne Building, 19 West
Flagler Street, Miami, FL 33130, this 8th
day of August, 1984.
FERTIG, CURTIS & WAKEFIELD
Co-counsel for Petitioner
{s/
Frank R. Gramling
123a
IN THE SUPREME COURT OF FLORIDA
CHASE FEDERAL SAVINGS AND
LOAN ASSOCIATION,
Petitioner,
vs.
JERRY B. SCHREIBER, etc.,
Respondent.
RESPONDENT'S RESFONSE TO
PETITIONER'S MOTION FOR
RE-HEARING AND CLARIFICATION
COMES NOW the Respondent, by and
through his undersigned attorney, and
files this response to Petitioner's
Motion for Rehearing and for
Clarification and says that same should
be denied, forthwith, for the following
reasons:
124a
Fla. R. App. P. 9.330 specifically
provides that "The motion shall state
with particularity the points of law or
fact which the court has overlooked or
misapprehended." The law and fact
referred to in the pending motion were
never issues in this case, and thus could
not have been "overlooked or
misapprehended" by this Court.
CONSTITUTIONAL ISSUE: For more
than seventy years it has been a rule of
this Court that questions not timely
raised and ruled upon in the Trial Court,
[the applicability of Art. X, § 4(c),
Fla. Const.] will not be considered on
appeal. Hartford Fire Ins. Co. v.
Hollis, 50 So. 985 (Fla. 1909). In this
cause, Petitioner had NEVER raised this
Constitutional issue in either the Trial
Court, nor in the initial appeal in the
Third District Court of Appeal, nor in
125a
the En Banc proceedings held in the Third
District Court of Appeal.
This issue was not raised _ by
Petitioner in the appeal in this cause
until the filing of this Motion for
Rehearing.
Furthermore, a review of the “Other
Authorities" cited by Petitioner in both
its Initial and Reply Briefs discloses
that no reference to Article X, §-4(c),
Fla. Const. was ever made.
2. THE SUN BANK OF MIAMI WEST
MORTGAGE: Exhibit "A" attached hereto
and made a part hereof,16 was taken from
Plaintiff's Composite 3, in evidence
below. Exhibit "A" is the Satisfaction
ofthe Sun Bank of Miami West Mortgage
dated October 13, 1977. SUN BANK OF
MIAMI WEST IS NOT, WAS NOT, AND HAS
l6omitted from this Appendix.
126a
NEVER BEEN, A PARTY TO THIS ACTION. The
reason is obvious. That mortgage was
satisfied prior to the inception of this
suit...when the PEREZES closed on the
subject property. Petitioner further
acknowledged this fact on Page 6 of its
Initial Brief in which it stated, in
part:
"At the time of closing, October
6, 1977 PEREZ borrowed Thirty-Two
Thousand Dollars, secured by a
mortgage from CHASE, satisfied
the Sun Bank (sic) first mort-
gage..."
The status of this mortgage was never an
issue in this cause.
It is respectfully submitted that
Petitioner's Motion for Re-Hearing and
Clarification is wholly without merit and
should be denied, forthwith.
I HEREBY CERTIFY that a copy of the
foregoing was mailed to JOHN H. DUHIG,
ESQ., Attorney for Perez, Suite 1133,
City National Bank Building, 25 West
Flagler Street, Miami, Florida 33130;
THERREL, BAISDEN, STANTON, WOOD & SETLIN,
ESQS., 1llll Lincoln Road, Suite 600,
Miami Beach, FL. 33139 and FERTIG, CURTIS
& WAKEFIELD, Co-Counsel for Petitioner,
Attn: Frank R. Gramling, Esq., 3104 So.
Andrews Avenue, Ft. Lauderdale, FL 33316,
this 16th day of August, 1984.
JERRY B. SCHREIBER, C.A.
and JOSEPH A. MCGOWAN
Attorneys for Respondent,
By _/s/
JERRY B. SCHREIBER
128a
SUPREME COURT OF FLORIDA
CASE NO.: 63,017
CHASE FEDERAL SAVINGS AND
LOAN ASSOCIATION,
Petitioner,
vs.
JERRY B. SCHREIBER, Personal
Representative of the ESTATE
OF THEADORES W. ROSS,
Respondent.
RESPONDENT'S MOTION FOR
REHEARING AND CLARIFICATION
COMES NOW the Respondent, by and
through his undersigned attorney, and
files this Motion for Rehearing and
Clarification from this Court's decision
and opinion dated August 30, 1985 and as
grounds would state that this Court has
overlooked and misapprehended points of
law or fact. Through its decision and
opinion, Florida Real Property and
Debtor~-Creditor laws have been
129a
devastated. For not only will the aged,
infirm, and semi-literate members of our
Society be subjected to numerous wrongs
in the future, but this opinion will also
facilitate Debtor's in the commission of
fraudulent conveyances to the frustration
of Judgment and Lien creditors.
For numerous pages, this opinion has
justified the position of the highest
Court of this State that no consideration
is required for a Deed of real property;
however, on pages 21 and 22 of the opi-
nion, the majority goes on to state that
consideration is required under certain
circumstances. If no consideration is
required for a Deed in this State, then
no consideration is needed...either it
is--or it isn't. | |
Based on the following issues, the
opinion on rehearing dated August 30,
1985 should be withdrawn:
130a
THIS COURT OVERLOOKED THE
ALLEGATIONS OF FRAUD AND UNDUE
INFLUENCE IN THE COMPLAINT.
THE VALIDITY OF PETITIONER'S
MORTGAGE AS A LIEN ON THE SUBJECT
PROPERTY HAS NOT PROPERLY BEEN
DISPOSED OF.
THE ORDER REMANDING THIS CAUSE TO
THE TRIAL COURT CONTAINS ERROR.
THE DECISION AND OPINION ON
REHEARING RAISES CONSTITUTIONAL
ISSUES.
THE DECISION ON THE MERITS IS
CONTRARY TO PUBLIC POLICY.
ARGUMENT
THIS COURT OVERLOOKED THE
ALLEGATIONS OF FRAUD AND UNDUE
INFLUENCE IN THE COMPLAINT.
The Complaint alleged, in part:
* * *
l3la
2. During the latter part of
1974, Defendant Peter R.
Cournoyer, befriended Plaintiff,
an elderly lady approaching ninety
(90) years of age, at her home in
Miami Beach Florida, after
learning that she was widowed and
without relatives.
3. From that time until August
19, 1977, Defendant Peter R.
Cournoyer endeavored to exercise
influence and control over the
Plaintiff by “handling all her
business and financial matters"
for her with the appearance that
he was helping her out.
4. The sole intent of the
Defendant, PETER R. COURNOYER in
doing so, was to obtain full
control over the assets and pro-
perty of the Plaintiff, which he
ultimately succeeded in doing.
S. Throughout that period of
time, Plaintiff's personal pro-
perty was sold and disposed of by
the Defendant, PETER R. COURNOYER,
and the Defendant PETER R.
COURNOYER retained the proceeds.
6. Furthermore, throughout that
period of time, Plaintiff was
placed in various nursing and con-
valescent homes by the Defendant,
PETER R. COURNOYER.
i * *
14. Plaintiff has been damaged in
that property was improperly taken
132a
from her and disposed of without
having received any benefit from
the disposition because of lack of
consideration.
* * t
On the second day of Trial held on
February 11, 1982, transcript "“T-2",
beginning at page 35, Mr. Cournoyer
testified in response to relevant and
material questions:
Q. Do you know Mrs. Theodore
Ross, the lady at my left?
THE WITNESS: I rely on the Fifth
Amendment rights.
THE COURT: Are you following the
advice of your counsel
in refusing to answer
the question on the
ground that it may
tend to incriminate
you?
THE WITNESS: Yes, your Honor.
As correctly observed in page 9 of its
Decision on Rehearing: "The Judgment
against Cournoyer in favor of Mrs. Ross
+ « « Was not appealed and its an legal
correctness is not an issue before us.
The entire Complaint, to which all
Parties answered, is contained in Exhibit
A, attached hereto and made a part
hereof .17
B. THE VALIDITY OF PETITIONER'S
MORTGAGE AS A LIEN ON THE SUBJECT
PROPERTY HAS NOT BEEN PROPERLY
DISPOSED OF.
The only Petitioner in this
Action is Chase Federal Savings and Loan
Association. They are the mortgagees on
the supject property. The Perezes, who
are not Parties to this Appeal [as
correct-ly noted on page 8 of this
Decision] failed to timely file their
Appeal with this Court, and their Cause,
l7aAppendix D of this Appendix.
134a
Case No. 63,025, was dismissed for lack
of jurisdiction pursuant to Respondent's
Motion, rehearing denied, June 30, 1983,
as reported in 443 So.2d 980.
Respondent., in his Answer Brief, under
Issue I of the Argument, timely raised
the issue that a mortgage "predicated
upon a void Deed is like-wise void...".
Jordan v. Landis, 175 So. 241,247 (Fia.
1937): See also Shuman v. State, 56 So.
694, 696 (Fla. 1911). For the purpose of
this Appeal, the legal correctness and
validity of the Deed is not an issue
before this Court. What is at issue
before this Court is the validity of
Petitioner's mortgage as a lien on the
subject property, solely.
Furthermore, the Perezes were
necessary parties to this Appeal but
they, at no time, were joined. According
to precedent as observed by the majority,
135a
with respect to the judgement against
Cournoyer [page 9 of this opinion on
rehearing], this Court would continue to
hold that it has no Jurisdic-ion over the
Perezes. Barry v. Barnett, 79 Fla. 562,
84 So. 540 (1920) goes even further to
state that, on its own Motion, this Court
should Dismiss the Appeal in this Cause.
See also Ravinowitz v. Houk, 100 Fla.
44, 129 So. 501 (1930); Steele v. Miami
Transit Co., 34 So.2d 530 (Fla. 1948).
Since there cannot be either a Mortgage
or a Mortgagee without a Mortgagor, on
the merits, this Appeal is now moot and
should be dismissed; or in the alter-
Native, this Court should hold that since
the Petitioner never joined the Perezes
in this Appeal, the law of the Case as to
the Perezes is established by the
Decision of the District Court of Appeal
for the Third District of Florida. As
136a
there cannot be either a Mortgage or a
Mortgagee without a Mortgagor, Chase
Federal Savings and Loan Association's
mortgage must be cancelled.
C. THE ORDER REMANDING THIS CAUSE TO
THE TRIAL COURT CONTAINS ERROR.
In the Trial Court and the
District Court of Appeal, all par-ties
were present and both Courts had
Jurisdiction over the Mortgagor and
Mortgagee. Therefore, the central
question presented for the courts' con-
sideration was the validity of the deed.
As stated above, in this proceeding on
Appeal, the Mortgagors-Purchasers are
not Parties [again, this fact was
correctly noted on page 8 of this
opinion]. On page 23 of this opinion,
the order remanding this case to the
trial court provides for "“"[E]ntry of a
137a
judgement for petitioner-defendant Chase
Federal Savings and Loan Association".
However, it is not clear just what this
judgement is for. The sole issue before
this Court is the validity of a mortgage
as a lien on property on which the
Mortgagors have no interest. This Court,
in Hay v. Issets, 125 So. 237, 240 (Fla.
1929): stated:
When an Appeal has been taken and
parties who have a vital and pecu-
nMiary interest in the Decree
appealed from are not made parties
to the Appeal, this Court is
without Jurisdiction of such par-
ties and cannot determine their
rights as affected by the Final
Decree... (Emphasis added).
j
The Perezes are not Parties
to this Appeal. Again, their Appeal was
Dismissed for lack of Jurisdiction by
this Court, rehearing denied, June 30,
1983.
138a
As can be seen from Exhibit B,18
attached hereto and made a part hereof,
the Perezes executed a document known as
"Statement". This document is also a
part of the record on Appeal (Plaintiff's
Exhibit 3A). q5 of this "Statement”
acknowledges, “The legal services being
performed in connection with this loan
are on behalf of the Lendor and not on
behalf of the Borrower". The testimony
at Trial reflects the Perezes, on the
advice of their New Jersey lawyer, had no
attorney (T-2, testimony of February ll,
1980, at page 54). Petitioner's loan
records, in evidence, acknowledge that
Chase's attorneys were not in any way
representing the Perezes. All parties to
the Deed of October 1977 could have
complied with the existing law in the
l8omitted from this Appendix.
139a
Third District of Florida, but they chose
not to. The purchasers could have
retained counsel for the real estate
transaction, but they chose not to. In
oral argument, there was concern as to
the collectibility of the Perezes. The
current tax records of Dade County
reflect that the Perezes own numerous
commerical real property sites in Dade
County, and accordingly they are quite
collectible.
From the foregoing issues and law, and
as the policy of courts is to stand by
precedent and not to disturb settled
points of law, there is no doubt that the
order on remand should direct the trial
court to enter a “judgement for the
respondent-plaintiff Jerry B. Schreiber,
Personal Representative of the estate of
Theadcres W. Ross, as to the ownership
of the real property and to cancel the
140a
mortgage in favor of petitioner-defendant
Chase Federal Savings and Loan
Association".
D. THE DECISION AND OPINION ON A
REHEARING RAISES CONSTITUTIONAL
ISSUES.
1. EXPANDING THE CONSTITUTIONAL
MEANING
As stated by this Court, at page 20 of
the opinion, "Article X, section 4 of the
Florida Constitution, as revised in 1968,
provides in pertinent part: ‘The owner
of homestead real estate, joined by the
spouse if married, may alienate the
homestead by mortgagage, sale, or gift
This Court has now translated this
phrase to mean that “there is no require-
ment that the grantee be related to the
grantor by consanguinity or marital
léla
affinity". This is because there is
nothing in the 1968 constitution which
appears to limit this provision
authorizing the owner to give away the
property. As this Court further reasons,
at page 21 of the opinion:
{[I)£f a homestead, which it is the
policy of the law to protect and
preserve in the family, may be
conveyed away be deed of gift, we
see no reason why the same rule
should not apply to all property.
We therefore hold that there does
not need to be consideration in
order for an owner of land to con-
vey it by deed to another.
Without a doubt, this Court, and the
mandates of Constitutional law, without
exception, have stated that the State
Constitu-tion of Florida is not a grant
of power but a limitat:ion upon power.
In re Apportionment Law, Senate Joint
Resolution RES. No. 1305, 263 So.2d 797
(Fla. 1972). Furthermore, as this very
142a
Court stated in State v. Barquet, 262
So.2d 431, 433 (Fla. 1972):
Governmental powers are divided into
the Executive, Legislative and
Judicial Branches. The lawmaking
function is the chief Legislative
Power. . . . The Judicial Branch is
Constitutionally forbidden from
exercising any powers appertaining to
the Legislative Branch (Fla. Const.,
Art.II,§$3)...
Furthermore, this Court has specifically
stated in In Re Apportionment Law,
Senate Joint Res. No. 1305, Supra, at
806:
Hence this Court in accordance
with the doctrine of separation of
powers, will not seek to substi-
tute its judgment for that of
another coordinate branch of the
Government, but will only measure
the acts done with the aspect of
the Constitution.
In an attempt to justify its rationale in
holding that "There does not need to be
consideration in order for an owner of
143a
land to convey it by Deed to another
person" (opinion p.21), has not this
Court encroached upon the domaine of tie
Legislature? Where there is no specific
prohibition in the Constitution of this
State to prohibit the Legislature from
enacting laws with respect to con-
sideration for a Deed of property, the
Legislature, in its wisdom, can do so.
Thus far, in the seventeen years since .
the adoption by the voters of the 1968
revision to the Florida Constitution, the
Legislative Branch has not enacted any
Statute stating that there does not need
to be consideration in order for the
owner of land to convey it by Deed to
another person. It is respectfully sub-
mitted that as the Legislature has not so
acted, it is not proper for the judiciary
to do so.
144a
2. INTERPRETATION OF ARTICLE X,
SECTION 4(c).
An examination of Article X, section
4(c) does not support the translation
that the inclusion of the word
"...gift..." singularly or in context of
the entire section was meant to radically
change real property law in Florida.
If the judiciary finds the meaning of
a statute or a section of a constitution
ambiguous or unclear, the normal proce-
dure is to determine the legislative
oer. The United States Supreme Court
has continually relied on the
Congressional history. Powell v.
McCormack 395 U.S. 486, 89 S.Ct. 1944, 23
L.Ed.2d 491 (1969); Universal Camera
Corp. Vv. N.LR.B., 340 U.S. 474, 71 we
456, 95 L.Ed. 456 (1951); and Bailey v.
Drexel Furniture Co., 259 U.S. 20, 42
145a
S.Ct. 449, 66 L.Ed. 817 (1922).
Had this been done concerning Article
X, section 4(c), it would become immi-
nently clear that the majority's decision
was totally different from the legisla-
tive intent.
From the inception of this amendment,
the intent of this revision as stated by
former Supreme Court Justice, Mr. B.K.
ROBERTS, was to be:
"“([T)hat where a man and his wife
had purchased and worked out a
home, and for reasons of their own
they see fit to leave it to one of
a number of children, they should
have a right to do so."
Excerpt of the transcript of preliminary
proceedings 1966-67 Florida Constitution
1968, page 258, et. seq., Exhibit cl9
attached hereto and made a part hereof.
19appendix J of this Appendix.
146a
+: bescuiiacesiuclamll
At page 260 of the transcript (Ex. C),
the question of consideration for a Deed
arose, and Mr. Roberts responded:
"I incline to the view that if a
conveyance is made without a con-
sideration, that it would not be
valid.” (Emphasis added).
The intent of the framers of this
revised section of the Florida
Constitution was that the owner of
homestead and his wife could make a gift
of their homestead property to "one of
[their] children. Of course, the con-
sideration reflected and on the con-
veyance and on the deed would, therefore,
be "good consideration" which defined as:
"Consideration based on a natural
duty which exists between relati-
ves by blood or marriage." Words
and phrases "Good Consideration"
(1972).
The clear intent of the framers of
147a
this Amendment was to maintain the "gift"
within the family and not to expand its
meaning as has been done by the majority
of this Court.
3. ARTICLE X, SECTION 4(c) IS
UNCONSTITUTIONAL AND INVALID.
It has already been demonstrated that
one, there is a serious question raised
by the expansion of the amendment and
two, such expansion did not follow
legislative intent. Either independently
or together, these issues support the
withdrawal of this Court's opinion.
However, this initial examination now
raises one additional area for
consideration; that being, the constitu-
tionality of Article xX, Section 4(c).
Just as the Constitution of the United
States provides for a procedure for revi-
sion, so too does the Florida
148a
Constitution (as it did in the 1885
Florida Constitution).
Article XVII, section 2 of the 1885
Florida Constitution established proce-
dures by which that Constitution could be
revised. It provided, in part, that ata
general election the revised constitution
shall be submitted to the electors of the
State, for approval or rejection. Since
a majority of the electors voting on the
revision of the Constitution’ shall
approve same, the Revised Constitution
shall take effect immediately upon such
approval by the electors.
As noted in the dissent of Overton,
J., (Opinion p.27)29, the official
analysis of the proposed Constitution
submitted by the Legislature to the
voters for ratification at the November
20aAppendix A, page 67a of this Appendix.
149a
5, 1968 General Election, explained the
change to the provision in issue, as
follows:
{[T)he right of a married owner to
directly transfer by deed, title
of the homestead to himself and
his spouse as an estate py the
entirety should be given constitu-
tional status. Also, the
Legislature would be directed to
provide a method of alienating or
encumbering homestead property
where either the owner or spouse
is incompetent.
Draft of proposed 1968 Constitution,
Article X, section 4, analysis of pro-
posed revision (July 20, 1968).
Justice Overton recognized the
disparagement between what the electorate
voted on and the impact of the wording of
this section of the Constitution. If
this Section of the Constitution can be
interpreted to mean that any "gift of
land" or a “gift of homestead may be made
to one other than a family member", then
150a
this section is clearly ambiguous; and
the electorate of this State were never
properly advised as to the true meaning
of. this constitutional change.
If this is so, would not such a revision
violate the proce-dures for constitu-
tional revision? The answer must be in
the affirmative as none of the electorate
has had an opportunity to approve or
disapprove such a major, radical change
involving a person's inherent rights as
required by the 1885 Florida
Constitution.
Is Article X, section 4(c) constitu-
tionally valid? From the foregoing, the
answer is "No".
4. DENIAL OF PROCEDURAL DUE
PROCESS.
A further constitutional issue is the
denial of procedural of due process. The
majority of this Court decided the merits
of this Case, on an issue that was not
presented or addressed by the Trial
Court, the District Court of Appeal, or
this Court in the First Appeal. This was
timely and specifically pointed out in
Respondent's Reply to Petitioner's Motion
for Rehearing.
Petitioner raised an entirely new
point of law and Respondent was not able,
through the full use of the adversary
system, to fully address the issue. In
fact, even now, with the time constraint
imposed upon Respondent for filing this
Motion for Rehearing Respondent is indeed
prejudiced for he is not only cramped for
time in order to frame his Motion, but no
argument was ever addressed or presented
to this Court or the trial court on a
major Constitutional issue except on
rehearing. In giving credence to this
152a
_———
point in Petitioner's Motion for
Rehearing, this Court has_ virtually
stated that each and every precident pro-
hibiting such an act, as enunciated by
this Court is now meaningless. A portion
of this Court's cases which are now "bad
law" are: Dober v. Worrell, 401 So.2d
1322 (Fla. 1981), In re Beverly, 342
So.2d 481, 97 A.L.R.3d 767 (Fla. 1977),
Lipe v. City of Miami, 141 So.2d 738
(Fla. 1962), Carillon Hotel vy.
Rodriguez, 124 So.2d 3 (Fla. 1960),
South Dade Farms, Inc. v. Peters, 107
So.2d 30 (Fla. 1959). Stein v. Brown
Properties, Inc. 104 So.2d 495 (Fla.
1958), Clark v. Osceola Clay & Top Soil
. Co., 99 So.2d 869 (Fla. 1958), Quick v.
Leatherman, 96 So.2d 136 (Fla. 1957),
Mariani v. Schleman, 94 So.2d 829 (Fla.
1957), City of Lake Worth v. First Nat.
Bank in Palm Beach, 93 So.2d 49 (Fla.
153a
1957), Condrey v. Condrey, 92 So.2d 423
(Fla. 1957), Love v. Hannah, 72 So.2d 39
(Fla. 1954),, Atlantic Coast Line R. Co.
v. Mack, 57 So.2d 447 (Fla. 1952),
Foley v. State ex rel. Gordon, 50 So.2d
179 (Fla. 1951), Jones v. Neibergall, 47
So.2d 605 (Fla. 1950), Southern Liquor
Distributors v. Kaiser, 7 So.2d 600, 150
Fla. 52 (Fla. 1942).
However, it is respectfully submitted
by the undersigned that the above cannot
be the position of this Court. For to
permit new issues to be raised for the
first time on appeal, or in this case on
the fourth rehearing in this cause, is to
deny full use of the adversary system,
and a denial of due process.
E. THE DECISION ON THE MERITS JS
CONTRARY TO PUBLIC POLICY.
154a
Even in view of the foregoing, a
most crucial issue that has_ been
overlooked and misapprehended is the
impact upon the public welfare Florida
and its’ residents. As observed by
Justice Overton, in view of this Court's
holding, those citizens of this State in
most need of Government support and pro-
tection would suffer.
Consider the following:
In 1945 this Court in McElroy v.
Gay, 22 So.2d 154 (Fla. 1945) set
aside a conveyance from an elderly
man to a young girl for failure of
consideration. As can be seen
from the facts, she induced a con-
veyance to her on the promise of
Marriage. This Court reversed the
dismissal of the Complaint and the
matter was remanded to the Trial
Court with directions that the
Case proceed. While the allega-
tions of the Complaint indicate
there was a promise to marry and
that was consideration for the
Deed, in view of this Court's
decision, the Defendant could
easily argue that there is no con-
sideration required for a Deed of
155a
Land as he made a gift to her of
an undivided half-interest in
realty because she was pretty and
nice, and that she would never
promise to marry such an old man.
Would McElroy be decided the same way
today?
Consideration for a deed of land is a
hurdle that the perpetrator of a fraud
must overcome. It is this hurdle, which
is tangibly demonstrable from the face of
the deed. It becomes a stumbling block
for the con-man, as well as protection
for the victim. For regardless of testi-
mony and a “swearing match" in the trial
court, the fact still remains that the
Stamps on the Deed and the Abstract of
Record clearly reflect that no con-
Sideration was given for the transfer.
It is acknowledged that the majority
opinion does not repudiate fraudulent
conveyances in Florida, but what the
156a
majority opinion does do is remove one of
the most crucial indicia or "“badges" of
fraud. As stated by this Court in
Cleveland Trust Company v. Foster, 93
So.2d 112 (Fla. 1957) at 114:
The facts which are recognized
indicia of fraud are numerous, the
most important being the
insolvency or indebtedness of the
Transferrer (sic), lack of con-
Sideration for the conveyance,
retention by the debtor of
possession of the property or
relation-ship between the
Transferrer(sic) and the
Transferee, the reservation of
benefit to the Transferrer (sic),
dependency or threat of litiga-
tion, secrecy or concealment, and
the transfer oof the debtor's
entire estate. (Empahsis added).
In 1980 there were 1,700,000 persons
living in Florida aged 65 years and
older. Tnis number is projected to be
2,400,000 by the year 1990. The percen-
tages of elderly living alone in Florida
are:
157a
Ages 60.° 764 « « 20 « « « @Be8B.
Ages 73° - 84 2. 2« 6 8 & » “Sees.
Ages 85 and older ... 30.6%.
Furthermore, the rate of Florida resi-
dents 65 years and older has increased
from 1970 to 1980 by 17.3%. By the year
1990, these numbers wiil increase by
19.4%. A further dramatic statistic is
that the population of individuals 85
years and olcer is projected to increase
from 1980 to the year 2000 by 203%. In
1980 there were 117,342 such persons. By
the year 2000, this number will increase
to 355,649. The elderly population is
the fastest growing population in our
State. It is interesting to note that
the majority of the elderly are female.
The male/female ratio of elderly over 75
years of age in 1970 was 82 male per 100
female; in 1980 it was 70 maie per 100
158a
female; in 1990 this ratio is projected
to be 65 male per 100 female; and by the
year 2000 this ratio is projected to be
62 male per 100 female.21 Fraud on the
elderly is an acknowledged fast growing
social problem in this State. With the
increase of this State's elderly popula-
tion, this problem will only increase.
Justice Overton in his dissent labeled
a majority opinion as the "gigolo -
mistress relief rule”. Another apt
description of this rule could be the
"con-man land fraud rule". Using the
facts of this Case and a little imagina-
tion, the con-man can always insulate
himself from any claims of undue
influence or a fraudulent transaction by
Simply forming a corporation. Once the
2lsource: Governor's office, State of
Florida, "Pathways To The Future",
December, 1984.
159a
for no consideration from the victim, a
perfectly valid transaction under the
majority's opinion, he merely records a
second Warranty Deed from himself to his
corporation on the very same _ day.
Thereafter, the corporation is clearly
able to convey property to any individual
and that purchaser would become a
bonified purchaser for value without
notice. The property would be fully con-
veyed and no claim could ever be made to
set it aside.
The impact of the majority's opinion
on Florida society not only affects the
elderly, but Similarly affects the
minorities and semi-literate residents of
our State. As a natural consequence of
this decision, at least with respect to
the elderly who have been defrauded of
160a
State would surely grow. — Considering the
above statistics on the elderly, the
State's financial burden of supporting
and caring for this once self-sustaining
population can only increase. Thereafter
the natural result is an increase in
taxation in order to care for those
people who could be thrown on a welfare
status.
As was even reflected in the testimony
of Mrs. Ross (at T-1:27 through 76, given
on January 7, 1980), she, too, was placed
in various nursing homes after Cournoyer
conned sae’ Wie of her personal and real
property. Having no source of income
other than Social Security, it is obvious
that the state welfare system would have
had to take her. However, a sympathetic
stranger took her in and cared for her
for no charge in her Adult Congregant
Living Facility.
l6la
Living Facility.
Since the en banc decision was filed
and published, the Respondent, a member
of the Florida Bar, has had a second case
in which a iady in her 60's was conned
out of her home by her neighbor. This
lady was an alcoholic, and her neighbor
said it would be much easier for her, the
neighbor, to make monthly mortgage
payments on the property and that she,
the neighbor, would be better able to
ensure that all payments and taxes were
paid if the property were deeded in her
name. That way, she, the neighbor, would
receive all the bills and tax notices.
The property was deeded "for love and
affection" and for no _ consideration.
From the Deed, I identified the
neighbor's attorney and advised him of
the Third District Court of Appeal en
banc decision in this cause. The neigh-
rightful owner, shortly thereafter.
However, the foregoing could not hap-
pen, and cannot happen, in light of this
Court's decision on rehearing.
The judicial process and the judicial
institutions of the State exist for the
benefit of its residents and citizens.
It is respectfully submitted that the
Highest Court of this State should not
turn its back on a fast growing segment
of the populous as well as the minorities
that are coming into this State on a
daily basis for residency, many of whom
are hard working and self-sustaining,
though semi-literate.
CONCLUSION
Based upon the foregoing, it is
respectfully submitted that this Motion
for Rehearing gives five major indepen-
dent points for consideration by this
163a
dent points for consideration by this
Court. Once considered, it is indeed
correct and proper that Respondent's
Motion for Rehearing be granted, and that
the Opinion of August 30, 1985 should be
withdrawn.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and
correct copy of the foregoing Motion for
Rehearing was mailed the 23rd day of
September, 1985 to Therrell, Baisden,
Stanton, Wood and Seitlin, 1111 Lincoln
Road, Suite 600, Miami Beach, Florida
33139, Frank Gramling, Esq., 750 S.E.
3rd Avenue, Suite 200, Ft. Lauderdale,
Florida 33316.
JERRY B. SCHREIBER, C.A and
JOSEPH A. MCGOWAN, ESQ.
Attorneys for Respondent
By /s/
Jerry B. Schreiber, Esq.
164a
SUPREME COURT OF FLORIDA
Thursday, March 6, 1986
CHASE FEDERAL SAVINGS AND
LOAN ASSOCIATION,
Petitioner,
vs.
JERRY B. SCHREIBER,
PERSONAL REPRESENTATIVE
OF THE ESTATE OF THEADORE
W. ROSS,
Respondent.
Ss
/
CASE NO.
63,017
Motion for Leave to Intervene by Luis
Perez and Gladys Perez is hereby denied.
Respondent's Motion
Mandate is hereby denied.
to
Enforce
the
AFTERNOON SESSION
MR. ROBERTS: Mr. Chairman and Members
of the Commission, this is another com-
mittee amendment. It was the view of the
human rights dieied chai that where a man
and his wife had purchased and worked out
a home, and for reasons of their own they
see fit to leave it to one of a number of
children. they should have the right to
do so.
For that reason the purpose of the
amendment is to remove from the current
draft the language: "The homestead shall
not be subject to devise if the owner is
survived by children." I'd iike to yield
now to Mr. Earle, who I believe was the
father of this amendment.
MR. TAYLOR: Mr. Chairman, will the
gentleman yield?
MR. ROBERTS: Yes, sir, I will.
MR. TAYLOR: What would be your
166a
thought as to the proper definition of
that word "children," minor children or
adult children, or what is your thinking
on that?
MR. ROBERTS: Just children, Judge.
And I tell you what the committee
discussed. Ofttimes as we know there
will be a family of say eight or nine,
ten children. Somewhere in the deal one
child gets caught with looking after Papa
and Mama during their last 15 or 20
years. The other children live their own
lives, and maybe it‘s a daughter or son,
but they stay there day after day, they
look after Papa's needs and Mama's needs.
Then in the sunet years of their life, if
that old couple wants to leave their
little home to that child, who has
sustained them in their greatest hour of
need, we question the right in good
conscience for the other children to come
167a
in and claim that it is an unlawful
disinheritance.
So for that reason, answering your
question, Judge Taylor, it was our
thought that the owners of a homestead
should have the freedom of disposition in
that manner if they saw Faso
MR. STALLINGS: Will the gentlemen
yield?
MR. ROBERTS: I will, sir.
MR. STALLINGS: Judge, isn't there
also some case law to the effect that
inter vivos they can convey the homestead
to one of these children who has taken
care of them, who has done all of this in
their sunset years, isn't there case law
to that effect?
MR. ROBERTS: That they can or cannot?
MR. STALLINGS: That they can.
MR. ROBERTS: They cannot.
MR. STALLINGS: On an inter vivos
168a
devise rather than testamentary, which of
course is not, but can't they do that
now? I recall some case that said that,
unless it's been overruled.
MR. ROBERTS: I incline to the view
that if a conveyance is made without a
consideration, that it would not be
valid.
MR. STALLINGS: I'm for your amend-
ment, but I was just trying to bring out
if there isn't some sort of case law pre-
cedent for doing that.
MR. ROBERTS: Well, I'd have to, to
be honest, I'd have to tell you that I
have not briefed the question recently,
so I am not in a position to answer.
169a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.