Dickenson v. Sharpe

• Decision Date: 16 June 1927
• Citation: 94 Fla. 25,113 So. 638
• Parties: DICKENSON et al. v. SHARPE.
• Court: Florida Supreme Court

113 So. 638

94 Fla. 25

DICKENSON et al. v. SHARPE.

Florida Supreme Court, Division B.

June 16, 1927

Suit by E. R. Dickenson against John C. Sharpe, E. L. Bryan and Tallulah Sharpe to foreclose a mortgage. From an order overruling a demurrer to defendant Tallulah Sharpe's answer asking affirmative relief, complainant and defendants John C. Sharpe and E. L. Bryan appeal.

Reversed with directions.

Syllabus by the Court

SYLLABUS

Decree granting permanent alimony does not become specifie lien on husband's realty in absence of statute. A decree granting permanent alimony does not become a specific lien on the husband's real estate unless so provided by statute.

Statute held to show legislative construction that decrees for permanent alimony do not constitute lien on husband's property (Rev. Gen. St. 1920, § 3198). Section 3198 of the Revised General Statutes appears to be a legislative construction to the effect that decrees for permanent alimony do not constitute a lien upon the property of the husband against whom such decree is rendered and the to provide a specific method for reaching the property of the husband in cases where it is necessary to resort to a subjection of the property to enforece the compliance with the terms of the decree.

Statute making judgment lien on realty applies to judgments and decree in which total indebtedness is fixed; statute making judgment lien on realty held not to apply to decrees for permanent alimony (Rev. Gen. St. 1920, §§ 2802, 3195, 3196 3198). Section 2802, Revised General Statutes of Florida applies to judgments and decrees in which the total indebtedness adjudged or decreed is fixed in such judgment or decree, and it should not be construed to apply to decrees for permanent alimony, the amount necessary to fully satisfy and discharge which can never be ascertained not fixed by the court or the parties and which does not require the payment of the amount named in the decree except upon the condition that both parties be living on stated future dates. Appeal from Circuit Court, Hillsborough County; F. M. Robles, judge.

COUNSEL

A. C. Brooks and E. L. Bryan, both of Tampa, for appellants.

O. P. Hilburn and S. S. Sandford, both of Tampa, for appellee.

OPINION

BUFORD, J.

In this case Dickenson filed his bill to foreclose a certain mortgage making as parties defendant John C. Sharpe, E. L. Bryan, and Tallulah Sharpe, alleging that Tallulah Sharpe had previously been the wife of John C. Sharpe. Hohn C. Sharpe had filed a bill for divorce against Tallulah Sharpe. The bill was dismissed, but a decree was entered granting Tallulah Sharpe $50 per month as permanent alimony and $100 as solicitor's fees. Prior to the marriage to Tallulah Sharpe, John C. Sharpe had executed one of the mortgages sought to be foreclosed, and subsequent to such marriage he joined by Tallulah Sharpe, executed the other mortgage sought to be foreclosed. the decree allowing Tallulah Sharpe $50 per month alimony appears to have been entered on July 3, 1924, and on August 7, 1925, John C. Sharpe sold and conveyed to E. L. Bryan the property described in the mortgage, subject to the mortgage. The defendant Tallulah Sharpe filed answer to the bill, and, when same was stricken, filed an amended answer. In her amended answer she prayed for affirmative relief, setting up the alimony decree referred to and claimed that it was a valid and binding judgment and decree and a valid and subsisting lien upon the property in litigation and prayed a decree subrogating her tights to the rights of the complainant under the mortgages for all sums paid for principal, interest, taxes, and expenses, and that when same should be determined she be entitled to receive out of the proceeds of any sale of the said property the amount due under and by virtue of the decree for alimony and solicitor's fees as a lien against the property after the said mortgages should have been paid. To this answer in the nature of a cross-bill E. L. Bryan filed his demurrer on the following grounds:

'(1) The said cross-bill fails to set forth any legal or equitable reason or cause of action wherein and whereby the court would be justified in holding that the alleged alimony decree in favor of Tallulah Sharpe against John C. Sharpe is a valid and subsisting lien against the property described in the mortgages being foreclosed by E. R. Dickenson, or any reason either legal or equitable why any sum of money realized from the sale of the said property in excess of the amount necessary to justify said mortgages should be applied to the said alleged alimony decree.

'(2) The said alleged alimony decree, being current or running decree requiring the said John C. Sharpe to pay to the said Tallulah Sharpe alimony at the rate of $50 per monty, is not a valid and subsisting lien against the property described in the mortgages being foreclosed.

'(3) The said alleged alimony decree, not being a decree for a specific amount and not having been made the order and judgment of the court for a specific and definite amount so that the clerk could issue an execution for a specific and definite amount, cannot possibly be held to be a lien against the property described in the mortgages being foreclosed.

'(4) The said alleged alimony decree cannot be held to be a lien against the property described in the said agreement because, the same being a current or running decree of $50 per month, it would take outside of extrinsic evidence submitted to be passed upon by the court to determine the amount due thereon, and it would be necessary for the court to take the testimony in order to determine the amount due, and it would be necessary for the court to enter an order based upon such testimony finding a specific and definite amount due and order the clerk to issue an execution for such amount before the said decree could be made a valid and

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