# Appendix — Schreiber v. Chase Federal Savings & Loan Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1840%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1160 ## Text | 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 =. vice Tacs £0 4 alte Abita pt Ba DL OPO NALA CE op tabs She 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1840%3A2. Public record. Not legal advice.