Allardice & Allardice v. Weatherlow
| Citation | 98 Fla. 475,124 So. 38 |
| Parties | ALLARDICE & ALLARDICE, Inc. v. WEATHERLOW et al. |
| Decision Date | 25 September 1929 |
| Court | United States State Supreme Court of Florida |
Action by Allardice & Allardice, Inc., against Charles J. Weatherlow and others. From an adverse judgment, plaintiff appeals.
Decree modified and affirmed.
Syllabus by the Court
Right to enforce lien against estate by entireties is purely statutory. The right to enforce a lien for labor performed and material furnished against an estate by entireties is purely statutory.
Bill to establish lien on estate by entireties is demurrable, where not alleging that labor or materials were furnished with knowledge or assent of husband and wife, or under written contract with them (Comp. Gen. Laws 1927, §§ 5360-5362; Laws 1923, c. 9296). Under Laws 1923, c. 9296 (Comp. Gen. Laws 1927,§§ 5360-5362), bill to enforce lien against estate by entireties, which fails to allege that labor was performed or materials furnished with knowledge or assent of husband and wife, or under written contract with them, is demurrable.
One spouse, acting separately, cannot create lien on estate by entireties (Comp. Gen. Laws 1927, §§ 5360-5362, 5867). Neither husband nor wife, acting separately, can create lien on estate by entireties; Comp. Gen. Laws 1927, § 5867 providing that wife's property shall remain in husband's care and management, not permitting establishment of lien contrary to sections 5360-5362.
Bill to enforce lien on estate by entireties, alleging agreement with both spouses, is not supported by evidence of contract signed by husband only, notwithstanding knowledge and assent of wife (Comp. Gen. Laws 1927, §§ 5360-5362). Under Comp Gen. Laws 1927, §§ 5360-5362, a bill to enforce a lien on estate by entireties, alleging that labor and material were furnished under agreement with both husband and wife, is not supported by evidence of agreement signed only by husband with knowledge and consent of wife, who also knew of furnishing of labor and materials.
Exhibit containing evidentiary facts does not obviate necessity of alleging matters essential to cause of action. Although an exhibit contains pertinent evidentiary facts, it does not dispense with the necessity of alleging in the bills those matters which are essential to a cause of action.
Decree enforcing lien against estate by entireties, under bill alleging agreement of husband and wife, cannot be entered on evidence that husband only signed agreement notwithstanding evidence of husband's agency, and ratification or estoppel (Comp. Gen. Laws 1927, §§ 5360-5362). Lien cannot be enforced on estate by entireties, under Comp. Gen. Laws 1927 §§ 5360-5362, under bill alleging agreement of husband and wife, under evidence that husband only signed contract, on theory that husband was authorized agent of wife and that she knew and assented to work and subsequently ratified the contract, or was estopped to dispute it; the enforcement of such lien being purely statutory.
Appeal from Circuit Court, Orange County; Frank A. Smith, judge.
H. F. Mohr, of Orlando, for appellant.
Dickinson & Dickinson, of Orlando, for appellee.
The right to enforce a lien for labor performed or material furnished against an estate by entireties is purely statutory, and a bill to enforce such a lien is demurrable, when it fails to allege that the labor was performed or the materials were furnished with the knowledge or assent ofhusband and wife, or under a written contract with them, as required by the statute governing the subject. Chapter 9296, Laws of 1923 (sections 5360-5362, Comp. Gen. Laws); Ferdon v. Hendry Lumber Co. (Fla.) 120 So. 335; Parker v. Gamble, 96 Fla. 343, 118 So. 21.
Neither the husband nor the wife, acting separately, can create a lien upon such an estate. Ferris-Lee Lumber Co. v. Fulghum (Fla.) 123 So. 697, decided at the present term; Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So. 376. In the latter case, decided before the cited statute was adopted, it was held that, 'from the peculiar nature of such an estate, and from the legal relation of the parties, there must be unity of estate, unity of possession, unity of control, and unity in conveying or incumbering it,' and that 'the estate is placed beyond the exclusive control of either of the parties.'
The statute (section 5867, Comp. Gen. Laws), which provides that 'the property of the wife shall remain in care and management of the husband,' does not operate to give the husband, acting alone, the right or authority to encumber an estate by entireties. In order to subject such an estate to a mechanic's or materialman's lien, the wife, as well as the husband, must participate in incurring the liability either affirmatively, by the execution of a written contract, or negatively by allowing the labor to be performed or the materials furnished with their knowledge or assent, as provided by the statute first above cited. But, whether the obligation be incurred by either or both of these methods, both spouses must participate. If the party who performs the labor or furnishes the material, and who seeks to establish a lien therefor, relies upon a written contract, he must both allege and prove its execution by both the husband and the wife; if he relies upon the negative method, he must show in his pleadings and proof that the labor was performed or the material furnished with the knowledge or assent of both the husband and the wife; and in either case he must, of course, allege and prove the filing and recording of the notice of lien as required by the statute. He cannot lay the basis for the establishment of his lien on the community property by setting up a written contract executed by the husband alone, and by showing as to the wife mere knowledge or assent on her part of the doing of the work and the furnishing of the material. The statute, by its language, does not contemplate this procedure, nor is it in accord with the principle of unity of estate and unity of control enunciated in the Hargrave Case. Neither spouse, acting alone, can encumber the community property; hence the written contract of the husband alone is not effective to create such encumbrance, nor is the knowledge or the acquiescence of the wife in the furnishing of labor or material alone effective to the accomplishment of such...
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