Carroll v. Dougherty

District Court of Appeal of Florida

Carroll v. Dougherty

302 So. 2d 439, 1974 Fla. App. LEXIS 8431

CourtDistrict Court of Appeal of Florida

DecidedOctober 18, 1974

DocketNo. 74-47

StatusPublished

Cited by3 cases

This text of 302 So. 2d 439 (Carroll v. Dougherty) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Carroll v. Dougherty, 302 So. 2d 439, 1974 Fla. App. LEXIS 8431 (Fla. Ct. App. 1974).

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Opinion

MANN, Judge (Ret.)

“Agreements to convey homestead property must, to be specifically enforceable, be signed in the presence of two witnesses as required by Sec. 689.01,” Fla. Stat. (1973), Zimmerman v. Diedrich, Fla.1957, 97 So.2d 120, 124. Accord, Koplon v. Smith, Fla. 1973, 271 So.2d 762. The contract in this case was signed in the presence of only one witness. When the [440]*440contract was presented to the purchaser, he noticed that it bore the signature of a single witness and called this to the attention of the broker. The broker took the contract and later returned it to the purchaser showing the signature of the broker’s wife as an additional witness. This action for specific performance was concluded in the plaintiffs’ favor by summary judgment in which the trial court thought it immaterial that the defendant claimed homestead status for the property, relying on Cox v. La Pota, Fla. 1954, 76 So.2d 662. That case rests upon a finding of estoppel based on substantial competent evidence. In this case the facts and inferences to be drawn therefrom with respect to estoppel are controverted so as to preclude the entry of a summary judgment. Althouse v. Kenney, Fla.App.2d, 1966, 182 So.2d 270.

Reversed and remanded.

HOBSON, A. C. J., and GRIMES, J., concur.

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MANN, Judge (Ret.)

“Agreements to convey homestead property must, to be specifically enforceable, be signed in the presence of two witnesses as required by Sec. 689.01,” Fla. Stat. (1973), Zimmerman v. Diedrich, Fla.1957, 97 So.2d 120, 124. Accord, Koplon v. Smith, Fla. 1973, 271 So.2d 762. The contract in this case was signed in the presence of only one witness. When the [440]*440contract was presented to the purchaser, he noticed that it bore the signature of a single witness and called this to the attention of the broker. The broker took the contract and later returned it to the purchaser showing the signature of the broker’s wife as an additional witness. This action for specific performance was concluded in the plaintiffs’ favor by summary judgment in which the trial court thought it immaterial that the defendant claimed homestead status for the property, relying on Cox v. La Pota, Fla. 1954, 76 So.2d 662. That case rests upon a finding of estoppel based on substantial competent evidence. In this case the facts and inferences to be drawn therefrom with respect to estoppel are controverted so as to preclude the entry of a summary judgment. Althouse v. Kenney, Fla.App.2d, 1966, 182 So.2d 270.

Reversed and remanded.

HOBSON, A. C. J., and GRIMES, J., concur.

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302 So. 2d 439, 1974 Fla. App. LEXIS 8431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carroll-v-dougherty-fladistctapp-1974.

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