Bowery v. Babbit

• Decision Date: 20 May 1930
• Citation: 99 Fla. 1151,128 So. 801
• Parties: BOWERY v. BABBIT et al.
• Court: Florida Supreme Court

128 So. 801

99 Fla. 1151

BOWERY v. BABBIT et al.

Florida Supreme Court

May 20, 1930

Commissioners' Decision.

Suit by Searles Babbit against L. F. Hart and wife, in which J. A Bowery intervened and filed a cross-complaint. From the decree, intervener appeals.

Affirmed.

Appeal from Circuit Court, Palm Beach County; C E. Chillingworth, judge.

COUNSEL

Joe Hatfield, of West Palm Beach, for appellant.

Blackwell Donnell & Moore, of West Palm Beach, for appellees.

OPINION

DAVIS C.

The appellant, whom we shall refer to as intervener, was permitted by the court to intervene and file a cross-complaint for the enforcement of a lien for labor and material in a suit for the foreclosure of a real estate mortgage instituted by Searles Babbit, one of the appellees, whom we shall refer to as complainant, against L. F. Hart, and his wife, Stella G. Hart, the other appellees, whom we shall refer to as the defendants.

In his amended bill of complaint, the original bill having been filed on the 14th day of June, 1927, the intervener alleged substantially that on the 22d day of October, 1925, he entered into an agreement with the defendant, L. F. Hart, whereby he, the intervener was to erect for said defendant a residence and garage on certain described property, being the same property described in the mortgage sought to be foreclosed by the complainant, for the amount of the costs of labor and materials furnished and used in the construction of said buildings and in addition thereto, 10 per cent. of the costs of said labor and materials; that he furnished such labor and materials until the 19th day of June, 1926, at which time the defendant was and is still indebted to him on said contract in the sum of $10,800.12, with legal interest from said 19th day of June, 1926; that the complainant claims a lien against the property by reason of a mortgage in the sum of $10,000, executed by the defendants on March 27, 1926, and filed for record April 1, 1926, which lien intervener alleges is inferior in dignity and subject to the lien and claim of intervener, because at the time it was executed and delivered, intervener was engaged in furnishing materials and labor for the said buildings and that said buildings were then in an uncompleted state and were in progress of construction. Intervener's amended bill was taken as confessed by the defendants. The complainant filed an answer to the said amended bill and in his answer denied that the buildings, at the time of the execution and delivery of the mortgage and recording of same, were in an uncompleted state and also denied that they were at said time in progress of construction, and averred the truth to be that at such time, the buildings were not in an uncompleted state and were not in progress of construction, but on the contrary were in a completed state and that when he took the said mortgage, he had no knowledge of the claim of the intervener. He further denied that the intervener furnished labor and material until the 19th day of June, 1926, and averred the truth to be that said buildings were completed, not later than March 27, 1926. The complainant in his said answer did not invoke section 3530, Revised General Statutes, 1920, section 5393, Compiled General Laws of Florida, 1927, as a bar to the enforcement of the alleged claim of the intervener upon the issues made. Testimony was taken before a special examiner, and, upon his report, and chancellor made and entered a final decree in which he dismissed the 'bill of intervention or cross-complaint of' the intervener and foreclosed the mortgage of complainant.

In the findings of the chancellor, as embodied in said decree, appears the following paragraph:

'That the building in question had been substantially completed at the time complainant's lien accrued; that complainant had no notice of Bowery's (intervenor's) lien when complainant's lien accrued; and that the Bowery suit was not brought within twelve months from the completion of the work and the furnishing of materials.'

Prior to the entry of the decree, the intervener, being advised by the chancellor of what his findings would be, moved the court to incorporate into the final decree certain other findings which he, the intervener, desired to have made and which were specifically set out in the motion, but this motion was denied. From the final decree, the intervener appealed to this court and has assigned here as error, the denial of the motion that certain findings be incorporated into the final decree, the entering of the final decree and finding therein that the buildings in question had been substantially completed at the time complainant's lien accrued, and that intervener's suit was not brought within twelve months from the completion of the work and the furnishing of the materials, and also the dismissal of intervener's bill of complaint.

The court committed no error in denying intervener's motion that certain findings be incorporated in the final decree. 10 R. C. L. § 346, page 560; Equity Rule 88.

In the above-quoted paragraph of the decree, the court used the words 'that the building in question had been substantially completed at the time complainant's lien accrued.' This language implies that something remained to be done which required the use of labor or material or both to complete the building. As to whether the building was completed, there is a conflict in the evidence; that is, if we are to consider the hanging and placing of screens, putting hardware on the windows, easing up the doors, placing a medicine cabinet in the bathroom, and putting hardware on the garage doors as being necessary to the completion of the building. Having in mind such conflict in the evidence, as well as the finding of the court, we are not prepared to say that the building was not in an uncompleted state, or that it was not in progress of construction when the mortgage to the complainant was executed and delivered. The court must have concluded from the evidence that the work on the building, though only substantially completed when the mortgage was given, was completed soon after the accrual of complainant's mortgage lien, for in the same quoted paragraph, it is made to appear that the court found that the 'Bowery (intervenor's) suit was not brought within twelve months from the completion of the work and the furnishing of materials.'

We are not advised upon what ground intervener's bill was dismissed. It might have been dismissed becuase of the finding of the court that the building was 'substantially completed' when the mortgage was executed; hence it is necessary for us to decide whether a 'substantial' completion of the labor on and the furnishing of materials for the building, gave priority to the mortgage over the statutory lien for labor and materials, notice of which had not been filed as the law requires.

Paragraph 1 of section 3517, Revised General Statutes, 1920, paragraph 1, § 5380, Compiled General Laws of Florida, 1927, reads as follows:

'As against the owner, absolute or limited, of the property, real or personal, upon which a lien is claimed, or person deriving through his death, or purchasers or creditors with notice, the lien hereinbefore provided for shall be acquired by any person, in privity with such owner, by the performance of the labor or the furnishing of the materials. Any purchaser or creditor whose title, interest, lien or claim in or to the property shall be created, or shall arise, while the construction or repair of such property as aforesaid is in progress shall be deemed and held to be a purchaser or creditor with notice.'

It is well settled here that:

'Under paragraph 1 of section 3517, Rev. Gen. Stats. [paragraph 1, 5380, Compiled General Laws of Florida, 1927], a person who takes a mortgage from the owner of property, upon which the construction of a building is in progress, takes with notice of any liens that may have already been acquired thereon by the furnishing of labor or materials for the erection of such building, whether notice of such lien has been recorded on the public records or not, and without regard to the expiration of the 3 months' period which is allowed, under paragraph 2 of such statute, for the recording of such notice after the entire performance of the labor or the entire furnishing of the materials.' People's Bank of Jacksonville v. Va. Bridge & I. Co., 94 Fla. 474, 113 So. 680. See, also, People's Bank v. Arbuckle, 82 Fla. 479, 90 So. 458.

If the labor upon and the furnishing of materials for the building were not finished at the time the mortgage lien accrued, construction of such building was still in progress, even though it was 'substantially completed,' provided the items furnished and the work done thereafter were in the exercise of good faith and within a reasonable time and in pursuance to the terms of the agreement to build the house and garage. See note 35 L. R. A. (N. S.) 901. No question has been raised by the appellee as to the work which is claimed to have been in progress at the time of the giving of the mortgage being necessary to what might be termed a 'finished job,' but if such question had been raised, we would feel constrained to hold that the buildings had not been completed and that work was in progress until such materials were furnished and such work was performed.

If the lower court dismissed the intervener's bill becuase of the finding that intervener's suit was not brought within twelve months from the completion of the work and the furnishing of the materials, it was necessary for the court to pass upon the weight and sufficiency of the testimony. It is a rule in this court that where a finding of the chancellor is based upon testimony taken without the...