Carroll v. Dougherty

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

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 contract 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.