Robson v. Bethel

375 So. 2d 632, 1979 Fla. App. LEXIS 15588

Opinions

PER CURIAM.

This is an appeal from a final summary-judgment. The appellee brought an action for ejectment based upon a deed executed by the appellant. In response the appellant claimed, among other things, that he could not read or write; that although he may have executed a deed to the appellee, he did so upon appellee’s specific oral assurance that the deed contained a provision for him to live on the property the remainder of his life; and that appellant had been continuously residing on the property since 1930. If proven, appellant’s allegations would constitute a valid defense to the claim of appel-lee. Collins v. McKelvain, 189 So. 655 (Fla.1939). In an affidavit filed in support of her motion for summary judgment the ap-pellee established her legal claim to the property by the deed executed by appellant, who had affixed his signature by an “X.” However, the appellee failed to negate the affirmative defense of the appellant as to the agreement that he retain a life estate. Under these circumstances we believe it was error to enter summary judgment. Accordingly, the final summary judgment is reversed with directions for further proceedings consistent with this opinion.

ANSTEAD, J., and CROSS, SPENCER C., Associate Judge, concur. BERANEK, J., dissents with opinion.