Title 1 CERTAIN PERSONAL CONTRACTS vendees, grantees, lessees and every of them, their heirs, successors, executors, administrators and assigns, and as against all and every person and persons who shall or may lawfully claim by, through, from or under them, or any of them, shall be deemed, taken and adjudged to be void and of none effect. § 3872 ARTICLE 3. FRAUDULENT LOANS OF CHATTELS. 3871. (2516.) Fraudulent loans void.-When any loan of goods and chattels shall be pretended to have been made to any person with whom or those claiming under him, possession shall have remained for the space of two years without demand and pursued by due process of law on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of a use or property by way of condition, reversion, remainder or otherwise in goods and chattels, and the possession thereof shall have remained in another as aforesaid, the same shall be taken, as to the creditors and purchasers of the persons aforesaid so remaining in possession, to be fraudulent within this chapter, and the absolute property shall be with the possession, unless such loan, reservation or limitation of use or property were declared by will or deed in writing proved and recorded. Under this section, a deed by the vendee only, acknowledging the The fact that the purchaser without record notice of a conditional vendee in possession of personal property, possession having so remained more than two years before the purchase, tenders his good offices in assisting the conditional vendor to collect the unpaid money, does not avoid the latter purchase. Ib. See American Process Co. v Florida W. P. B. Co., 56 Fla. 116, 47 So. 942; Phenix Ins. Co. v Hilliard, 59 Fla. 590, 52 So. 799. There is no statutory provision now in force in this State for the recording of bills of sale. This section relates to reservations or limitations as to the use of goods and chattels. Malsby v Gamble, 61 Fla. 327, 54 So. 766. A mortgage executed by the conditional vendee in possession of personal property before the expiration of the statutory period of two years. confers no right as against the conditional vendor, not possessed by the mortgagor. Dillon v Mizell Live Stock Co., 66 Fla. 425, 63 So. 824. Th. Sec. 4, Ch. 872, Acts 1859. Sec. 1. CHAPTER V. CERTAIN PERSONAL CONTRACTS. 3872. (2517.) Promise to pay another's debt, etc.-No Nov. 15, 1828, action shall be brought whereby to charge any executor or Sec. 10. administrator upon any special promise to answer or pay any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements or hereditaments, or of any uncertain interest in or concerning them, or for any lease thereof for a period longer than one year, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized. Promise to Pay Another's Debts.-Indorsement of note is not such promise. Indorser's agreement to pay note at maturity for beneficial consideration not within the section. Spann v Baltzell, 1 Fla. 301. A promise to pay the debts of another, made in writing and signed by the party, but without expressing a consideration, is sufficient. Dorman v Bigelow, 1 Fla.. 323. Where the mortgagor of real estate covered by a mortgage conveys to a purchaser, and the purchaser to complete his title procures the mortgagee to release to mortgagor, and promises in consideration of such release to pay a given sum to the mortgagee: Held, that such promise need not be in writing. Simonton v Gandolfo, 2 Fla. 392. A negotiable promissory note, given in part payment of the debt of a third person, is binding on the maker. Lines v Smith, 4 Fla. 47. A written promise to pay the debts of another must be certain. Eckman v Brash, 20 Fla. 763. A promise by an agent of the vendee of cedar logs to be thereafter delivered, to pay over the purchase money therefor, with the consent of the vendors, to third parties who were to furnish goods to such vendors, is not a transaction within the statute of frauds. American L. P. Co. v Wolfe, 30 Fla. 360, 11 So. 488. Transactions held to be within the statute. Martyn v Amold, 36 Fla. 446, 18 So. 791. New consideration. Craft v Kendrick, 39 Fla. 90, 21 So. 803. The mere fact that a verbal agreement to answer for the debt, default or miscarriage of another is an absolute promise to pay the debt, and that it is supported by a new consideration does not necessarily take it out of the statute of frauds. West v Grainger, 46 Fla. 257, 35 So. 91; Daytona Bridge Co. v Bond, 47 Fla. 136, 36 So. 445. It is necessary to declare specially on a promise to pay or answer for the debt of a third person. West v Grainer, 46 Fia. 257, 35 So. 91. A parol agreement by the grantee, at the time of taking a deed to real estate, that he will assume the mortgage indebtedness upon the property as part of the consideration, may be enforced in equity. Herrin v Abbe, 55 Fla. 769, 46 So. 183. A promise by the purchaser of land that is subject to mortgage, to assume and pay off the incumbrance is not required to be in writing. Ib. A mere request by one to give credit to another does not create a legal liability to pay the debt. Goldring v Thompson, 58 Fla. 248, 51 So. 46. Contracts for Sale of Land.-Payment of purchase money will not take case out of section; but may, if followed by possession and improvements under the contract. Improvements need be of no specified value. Tate v Jones, 16 Fla. 216. Payment of the purchase price of land, upon a parol agreement to convey, is not enough to take the case out of the statute of frauds. Price v Price, 17 Fla. 605; Neal v Gregory, 19 Fla. 356. A parol sale of standing trees, though void as a sale of interest in land, operates as a license to enter and cut the trees. Jenkins v Lykes, 19 Fla. 148. Neither a seal nor subscribing witnesses are necessary to the validity of a contract for the sale of land under the statute of frauds. Lente v Clarke, 22 Fla. 515, 1 So. 149. An agreement for the sale of land under the statute of frauds will be held sufficient as to a description of the land if it so describes a particular piece of land that it can be identified, located or found. Ib. Transfer of written contract for conveyance of land held binding on all parties, though assignment not in writing. Craver v Spencer, 40 Fla. 135, 23 So. 880. A sale of standing timber, is a contract concerning an interest in land, within the meaning of the statute of frauds. Richbourg v Rose. 53 Fla. 173, 44 So. 69; High v Jesper Mfg. Co., 57 Fla. 437, 49 So. 156; Elsberry v Sexton, 61 Fla. 162, 54 So. 592. In a written memorandum dated Jacksonville, Florida, a description of the land to be sold as lots 2, 3, 4, 5. 10, 11, 12, 13 in block 62, Springfield, satisfies the statute of frauds to be admitted in evidence in an action for breach of contract. when supplemented by offer to remove by parol any uncertainty. Conroy v Woodcock, 53 Fla. 582, 43 So. 693. The consideration for sale of land in a "note or memorandum" satisfies the statute where the total is given, one-fourth whereof is to be paid as provided therein, and the "balance to be paid in one, two and three years respectively at six per cent interest." Ib. Payment of the purchase money, followed by delivery of possession under parol contracts for the sale of lands, constitute such part performance that the seller is estopped from insisting that the agreement was not signed. Maloy v Boyett, 53 Fla. 956, 43 So. 243. Where a bill to enforce a specific performance of a verbal contract to convey real estate, alleges that the purchaser has been given possession of the real estate under the contract and that he has expended labor and money upon its improvement, it is not essential to the right to specific performance that he should have paid the whole of the purchase price. Taylor v Mathews, 53 Fla. 776, 44 So. 146. Where the owner of land makes a verbal contract of sale for an agreed price, and puts the vendee in possession, upon compliance with the terms of his contract of purchase, a court of equity will, in favor of such purchaser, enforce specific performance of such contract notwithstanding the statute of frauds. Demps v Hogan, 57 Fla. 60, 48 So. 998. In a contract for the sale of land the description of the land is sufficient when it is "all land owned by the said" vendor "located west and north of the south fork of the Miami River and in" stated sections, township and range in a named county of the State. South Florida C. L. Co. v Walden, 59 Fla. 606, 51 So. 554. Under this statute where a contract is for the sale of land, or any interest therein, and is not in writing, no action at law can be maintained upon it. Part performance of such contract is a ground of relief in equity only. Elsberry v Sexton, 61 Fla. 162, 54 So. 592. Parol authority is sufficient to authorize an agent to execute a contract for his principal for the sale of real estate. Beekman v Sonntag Inv. Co., 67 Fla. 293, 64 So. 948. In General.-A verbal contract for slaves that could not be performed in a year, held void by the statute of frauds. Summerall v Thoms, 3 Fla. 298. An agreement by which a party enters upon the land of another, and performs labor and services thereon, is not an agreement by which an estate in land is created. Tunno v Robert, 16 Fla. 738. A verbal agreement for a lease for a year to begin at future date void. Birnbaum v Solomon, 22 Fla. 610. Agent's authority to contract must be ascertained. Fla.. 64, 3 So. 821. Yates v Yates, 24 Parol agreement as to boundaries. Watrous v Morrison, 33 Fla. 261. 14 So. 805. An agreement that a deed conveying land shall operate as a mortgage to secure a debt is not within the statute of frauds. DeBartlett v DeWilson, 52 Fla. 497, 42 So. 189. 3873. (2518.) Contracts to sell personalty.-No contract Ib., Sec. 11. for the sale of any personal property, goods, wares or mer chandise shall be good, unless the buyer shall accept the Ch. 379, Acts 1851, Sec. 1. goods (or part of them) so sold and actually receive the same, or give something in earnest to bind the bargain or in part payment, or some note or memorandum in writing of the said bargain or contract be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized. This section uses the words "personal property" as well as the words "goods, wares and merchandise," and there can be no doubt that shares of stock are included within the term "personal property." Southern Life Ins. Co. v Cole, 4 Fla. 359. Where the owner of certain crushed granite offers to sell the same to a party upon whose premises the rock is located, and the latter agrees to buy the same, but there is nothing given by way of earnest to bind the bargain or in part payment, and no note or memorandum in writing of the bargain or contract signed by the parties, it is essential to a consummated sale under this section that the alleged purchaser should have done some act showing an acceptance. C. H. & N. Ry. Co. v Burrell, 56 Fla. 217, 48 So. 213. A certain letter alleged to contain an agreement personal property held not to satisfy the statute of frauds. Co. v Florida Cooperage Co., 59 Fla. 390, 52 So. 13. for the sale of Ocala Cooperage In order to bring a contract for the sale of goods within the exception of this section, it is necessary that the goods should have been received and also accepted by the buyer. United H. F. Co. v Blue, 59 Fla. 419, 52 So. 364. The entry in the seller's account book is not a memorandum signed by the party to be charged, within the meaning of the statute of frauds. Ib. 3874. (2519.) Newspaper subscription.-No person shall be liable to pay for any newspaper, periodical or other like matter, unless he shall subscribe for or order the same in writing. Ch. 1715, Acts 1869, Sec. I. CHAPTER VI. HOMESTEAD AND EXEMPTION, ARTICLE I. METHOD OF SETTING APART HOMESTEAD AND EXEMPTIONS. 3875. (2520.) Designation of homestead by owner before levy. Whenever any person, being the head of a family, residing in this State, shall desire to avail himself or herself of the benefit of the provisions of the Constitution and laws exempting property as a homestead from forced sale under any process of law, he or she may make statement, in writing, containing a description of the real property claimed to be exempt, and declaring that the same is the homestead of the party in whose behalf such claim shall be made. Such statement shall be signed by the person making the same and recorded in the office of the county judge. Title 1 HOMESTEAD AND EXEMPTION The homestead, whether defined and recorded under the statute, or set apart for the heirs after the death of the head of the family, is not assets in the hands of an administrator. Baker v State, 17 Fla. 406. R filed and recorded his statement as provided by law, claiming a certain unoccupied lot as his homestead. He then made a contract to erect upon it a residence for himself and family, and had drawn upon such lot some of the building material. D filed a creditor's bill to subject such lot to the payment of the debt. Held, that the lot was not exempt. Drucker v Rosenstein, 19 Fla. 191. Great care should be taken to prevent the homestead laws from becoming the instruments of fraud. Drucker v Rosenstein, 19 Fla. 191; Milton v Milton, 63 Fla. 533. 58 So. 718; Jetton Lbr. Co. v Hall, 67 Fla. 61. 64. So. 440. Homestead not deviseable. v Beatty, 37 Fla. 426, 9 So. 4. Wilson v Fridenburg, 21 Fla. 386; Scull Where one or more of the heirs is a minor, and the ancestor dies actually residing upon or occupying as his homestead a tract of rural land exceeding 160 acres, and not having filed a written designation of a part thereof as his homestead, ejectment will not lie in behalf of such heirs, but the proper remedy for setting aside the homestead is by bill in equity. Barco v Fennell, 24 Fla. 378, 5 So. 9. An administrator is not entitled as against the intestate's heirs to the possession of land exempt as the homestead of the intestate, and ejectment will lie in behalf of the heirs against the administrator, where the land occupied by the intestate consisted of 160 acres or less. Ib. The homestead laws should be liberally construed in the interest of the family home. Milton v Milton, 63 Fla. 533, 58 So. 718; Jetton Lbr. Co. v Hall, 67 Fla. 61, 64 So. 440. § 3877 3876. (2521.) Designation of homestead after the levy. Ib., Sec. -Whenever a levy shall be made upon the lands or tenements of such head of a family whose homestead has not been set apart and selected, such person, his or her agent or attorney, may in writing notify the officer making such levy, by notice under oath made before any officer of this State duly authorized to administer the same, at any time before the day appointed for the sale thereof, of what he regards as his or her homestead, with a description thereof, and the remainder only shall be subject to sale under such levy. Where sale of a tract of land has been made under an execution issued upon a judgment against the owner, who had not lived on the land for more than three years, and who took no steps to have the land exempted as a homestead until more than a year after the sale and a sheriff's deed has been executed to the judgment creditor; in an action of ejectment brought by the judgment creditor the judgment debtor can not claim a homestead in the land sold. Barclay v Robinson, 67 Fla. 416, 65 So. 546. 3877. (2522.) Survey at instance of dissatisfied creditor. -If the creditor in any execution or process sought to be levied shall be dissatisfied with the quantity of land selected and set apart, and shall himself, or by his agent or attorney, notify the officer levying, the officer shall at the creditor's request cause the same to be surveyed, and when the homestead is not within the corporate limits of any town. or city, the person claiming said exemption shall have the right to set apart that portion of land belonging to him. which includes the residence or not, at his option, and if the Ib., 2. Sec. 3: 1. Feb. 24, 1873. |