George V. REED and his wife, Clara M. Reed, Petitioners, v. Vivian FAIN, Respondent, 145 So. 2d 858

THORNAL, Justice. By petition for writ of certiorari we are requested to review a decision of the District Court of Appeal, Second District, appearing at 122 So.2d 322, because of an alleged conflict on the same point of law with prior decisions of this Court. Our judgment turns on the

interpretation and application of

Section 95.23, Florida Statutes, F.S.A., which applies to certain instruments which have been on record for twenty years or more. We rely upon the opinion of the district court for our factual

summary. For continuity, we repeat a few of the significant facts. In 1930, J. M. Reed, joined by his wife, Stella, conveyed his homestead to his son the petitioner, George V. Reed. George immediately reconveyed the property to J. M. and his wife in order to create an estate by the entirety. Title originally was held by J. M. alone. Both conveyances were without consideration. In 1951, the father and mother conveyed the property to their son George, reserving to themselves a life estate with survivorship.

The 1951 conveyance had no effect upon the outcome of this litigation because at the time of its execution, J. M. Reed lacked the mental capacity to execute the document. The factual statement of the district court then contains the observation “Stella M. Reed conveyed her life estate to George in 1955.” (Emphasis added.) She died within a year. In 1957, respondent Vivian Reed Fain, daughter of J. M. and Stella Reed, filed this suit in equity to obtain cancellation of the deeds above mentioned.

She alleged fraud and undue influence, lack of consideration and the violation of her rights under the Florida Homestead Laws. The defendants in the trial court, who are the-petitioners here, filed an answer in which they relied upon

Section 95.23, Florida Statutes, F.S.A., in view of the fact that the 1930 conveyance to J. M. and Stella Reed had been of record without adverse claim for more than twenty years. To-give the subject statute the effect contended for by the plaintiffs below, the chancellor-concluded that when J. M. Reed died in-1954, he held title to the property as a homestead, that it inured to his widow as a life estate and then to his two children in fee as tenants in common. He held that the 1957 deed from Stella to her son George, conveyed only her life estate because in his view she had nothing else to convey.

The chancellor reached this conclusion by holding the 1930 transaction between the Reeds and their son George, as being an ineffective attempt to alienate the homestead without consideration. The decision of the chancellor was affirmed by the district court, 122 So.2d 322, although the judges of that court were not in accord as to their reasons therefor. We are now requested to review the decision of the district court because of an alleged direct conflict with prior decisions of this Court in Barnott v. Proctor, 128 Fla. 63, 174 So. 404, and Thompson v. Thompson, Fla., 1954, 70 So.2d 555.

At the outset, we deem it advisable to invite attention to an aspect of the decision under review which might escape a mere casual reading. The apparent majority decision is actually not the decision of the court on the critical aspect of the case which is the

interpretation to be given

Section 95.23, supra. It will be noted that on this aspect of the problem the controlling decision is really designated as a specially concurring opinion. In our discussion of the matter we treat the so-called specially concurring opinion as the decision of the district court to be measured by the rules of the alleged prior conflicting opinions of this Court.

Section 95.23, Florida Statutes, F.S.A., provides as follows: “Limitations where deed or will of record for twenty years or more.— After the lapse of twenty years from the record of any deed or the probate of any will purporting to convey lands no person shall assert any claim to said lands as against the claimants under such deed or will, or their successors in title. “After the lapse of twenty years all such deeds or wills shall be deemed valid and effectual for conveying the lands therein described, as against all persons who have not asserted by competent record title an adverse claim.” The majority of the court of appeal had the view that the twenty year period prescribed by this statute begins to run from the date of record of a deed or probate of a will.

Unless something is read into the statute which is not apparent from the clear language thereof, this conclusion is the correct one. It is supported by the prior decisions of this Court in Moyer v. Clark, Fla., 1954, 72 So.2d 905; Thompson v. Thompson, supra, and Barnott v. Proctor, supra. The judge writing the minority view of the district court on this subject makes reference to an

article by Dr. James W. Day, entitled “Curative Acts and Limitations Acts Designed to Remedy Defects in Florida Land Titles — IV.”, IX U. of Fla. L.Rev. 145. As expressed in the cited

article it is the view of Dr. Day and Judge Shannon of the district court that

Section 95.23, supra, is in the nature of “a curative act with a limitation provision.” In this view, the twenty year provision of

Section 95.23, supra, does not begin to run until a cause of action accrues in favor of the party asserting the adverse claim against the recorded instrument. This view stems from the contention that if applied otherwise, the act would be unconstitutional for the reason that the twenty year period could run before the accrual of a right of action adverse to the recorded instrument. Those of us who sat at the knee of Professor Day in the University of Florida College of Law, regard his views on any subject, and particularly real property, with tremendous respect.

We would not lightly lay aside the opinions and advice of one who has contributed so much to the development of the law and lawyers in Florida. We think it unnecessary, however, in this case to take issue with the analysis of the statute expressed in the opinion by Judge Shannon, except to conclude that in the instant case it was not applicable. The property here involved was a homestead. The Florida Constitution,

Article X,

Section 4, F.S.A. and the Florida Statutes,

Section 731.27, F.S.A., obviously recognize the homestead and the interests of the family in the title thereto as a very special kind of property right that enjoys the fullest measure of protection against improper encroachment and illegal alienation. The point that recurs is that Mrs. Fain could have proceeded to protect her interests during the running of the twenty year period from the date in 1930 when the deed was recorded.

We think she could have done so by an appropriate proceeding inequity to establish the property as a homestead at the time of the 1930 transaction, as well as to adjudicate the effectiveness of the alienation that was attempted at that time. We have said that a deed to homestead between husband and wife, where there is a child or children living “is prima facie ineffective to convey legal title to such homestead, insofar as the vested interest of the children are concerned.” Church v. Lee, 102 Fla. 478, 136 So. 242, 247.

This Court had earlier committed itself to the proposition that “the ‘heirs’ of the homestead owner, as well as the owner and his wife, if he has one, have an interest that can be ‘alienated’ only as provided in the Constitution. If the requirements of the Con■stitution and the statutes are not complied with in ‘alienating’ homestead real estate the attempt is a nullity as to the ‘heirs’ of the homestead owner and also as to the husband and wife.” Hutchinson v. Stone, 79 Fla. 157, 84 So. 151, 154.

In view of the decisions of this Court which have consistently been extended to protect the interest of the heirs of a home•stead owner, we have the view that in the event that there is an attempted alienation which is illegal or otherwise ineffective against the heirs, then they may immediately enter a court of equity to establish their interest in the subject matter. By following this application of the rule, 'Section 95.23, supra, is saved against the ■constitutional impediment suggested by Professor Day and Judge Shannon and permits the application of the statute just as it was written by the Legislature.

What we have heretofore written deals with the

interpretation of

Section 95.23, supra. It remains for us to determine whether the decision of the Court of Appeal ■conflicts with prior decisions of this Court in Thompson v. Thompson, supra and Barnott v. Proctor, supra. We regret that we •are not able to agree with the district court ■as to its asserted distinguishing characteristics which would differentiate the instant ■case from prior decisions of this Court. We are, therefore, compelled to conclude that there is a conflict of decision on the same point of law fatal to the decision of the district court here. In Thompson v.

Thompson, supra, a father conveyed the homestead to the mother thinking that in so doing he could avoid certain debts. This was in 1926. Twenty five years later the mother died, leaving a will by which she devised the land to one son of the couple. In 1953 the father and remaining children proceeded in equity to set aside the 1926 deed on the ground that it was an ineffective attempt to alienate the homestead. This Court, in no uncertain terms, applied

Section 95.23, supra, to the rights of the father and the children and held that the deed to the deceased mother which had been of record for more than 20 years, was immune to attack. We think there is direct parallel between the rule of law which this Court announced in Thompson v. Thompson and the rule which should be applied in the instant case. There is, likewise, a substantial parallel between the rule of Barnott v. Proctor, supra, and the rule applicable here. However, it is not as pointed because of the intervention of what appeared to be the interest of a bona fide third party claimant in Barnott.

We invite attention to the holding of the chancellor as reflected by the opinion of the district court. He, apparently, took the view that when Stella Reed conveyed all of her interest in the property to the petitioner George Reed in 1955, she conveyed merely a life estate for the simple reason that in view of the chancellor she owned only a life estate. Inasmuch as this matter will have to be returned to the district court for the entry of a correct judgment, this fact should be taken into consideration in the further disposition of the rights of the petitioner George Reed.

Because of conflicts hereinabove pointed out, the decision of the district court is quashed and the cause is remanded to that court for the entry of a judgment consistent herewith. It is so ordered. TERRELL, THOMAS and O’CON-NELL, JJ., concur. ROBERTS, C. J., and HOBSON and DREW, JJ., dissent.