Edelson v. Quinn

• Decision Date: 11 April 1936
• Citation: 123 Fla. 670,167 So. 535
• Parties: EDELSOM et ux. v. QUINN.
• Court: Florida Supreme Court

167 So. 535

123 Fla. 670

EDELSOM et ux. v. QUINN.

Florida Supreme Court, Division B.

April 11, 1936

Suit by Ella X. Quinn, a feme sole, against Harry Edelson and wife. From an order denying a motion to transfer the cause to court at law, defendants appeal.

Affirmed.

Appeal from Circuit Court, Dade County; Paul D Barns, Judge.

COUNSEL

S. J Barco, of Miami, for appellants.

Ben S. Hancock, Jr., of Miami, for appellee.

OPINION

BUFORD Justice.

The appeal here is from an order denying motion to transfer the cause. The transfer of cause was sought under provisions of section 75 of 1931 Chancery Practice Act (Acts 1931, c. 14658), which section is as follows:

'Action at law erroneously begun as suit in equity: Transfer to court of law. If at any time it appears that a suit commenced in equity should have been brought as an action at law it shall be forthwith transferred to the law court of competent jurisdiction and be there proceeded with, with only such alteration in the pleadings as shall be essential. In such cases an order shall be made by the court for the transfer of the cause and the transmission of all papers filed therein to the proper law court, and thereupon the originals of such papers shall be so transmitted and filed, together with a certified copy of the order; provided, however, that when the transfer is to the law side of the same court it shall be effected by the order of transfer.'

The grounds for the motion were as follows:

'1. It appears from the record in this case that the cause of action is not within the jurisdiction of a court of equity.

'2. A court of equity will enforce a vendor's lien only on real property and not on personal property.

'3. A court of equity will not enforce a vendor's lien when the total purchase price includes both real property and personal property and the amounts to be paid for each class of property respectively are not clearly designated.

'4. The only cause of action which the plaintiff has is based on the alleged promissory note referred to in the amended bill of complaint.'

We think there was no error in denying motion to transfer the cause.

The complainant in the court below by an amended bill of complaint sued to enforce a vendor's lien against certain real estate for the unpaid balance amounting to $200.

The plaintiff had sold the following described property, 'Lots Twenty (20) and Twenty-one (21), Block Nine (9), in Northern Boulevard Tract, a subdivision of part of the Northwest Quarter (NW 1/4) of Section 25, Township 53 South, Range 41 East, according to the recorded plat thereof in Plat Book 2, page 29, Dade County, Florida, Records; together with the seven (7) cottages built thereon and known and numbered as 527 to 537 Northwest 30th Street, in the City of Miami, Florida; and also the furnishings, fixtures and equipment contained in the seven (7) cottages,' to the defendants for the sum of $2,500 upon which $2,300 was paid and the balance was never paid nor secured, though a note was given by Harry Edelson and it was the payment of this $200 which complainant sought to enforce in equity by claiming and seeking to establish a vendor's lien on the real estate for that amount.

In the case of Johnson v. McKinnon, 45 Fla. 388, 34 So. 272, 275, this court quoted with approval from McKeown v. Collins, 38 Fla. 276, 21 So. 103, saying:

"A vendor's lien is that lien which in equity is implied to belong to a vendor for the unpaid purchase price of land sold by him, where he has not taken any other lien or security for the same, beyond the personal obligation of the purchaser. Such lien is not the result of any agreement between vendor and vendee, but is simply an equity raised by the courts for the benefit of the former.' And in accordance with the principle laid down in 2 Warville on Vendors, § 676, stating that, a vendor's lien 'being created by inference alone, it is, in effect, a mere equity raised and administered by the courts, by whom it will be enforced or denied between parties as the exigencies of each particular case may seem to require."

In Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 129, 43 A.L.R. 1409, we held:

'The doctrine of equitable lien follows the doctrine of subrogation. They both come under the maxim, 'Equality is equity,' and are applied only in cases where the law fails to give relief and justice would suffer without them. * * *

'An equitable lien exists independently of any express agreement and equity enforces it on the principle that a person having gotten an estate of another ought not in conscience to keep it as between them. Included in this class of liens is the vendor's lien. * * *

'The equitable lien differs essentially from a common-law lien; the latter being the mere right to retain possession of some chattel until a debt or demand due the person thus retaining it is satisfied; possession being such a necessary element that if it is voluntarily surrendered by the creditor the lien is at once extinguished, while in the former or equitable lien possession remains with the debtor or person who holds the proprietary interest. * * *

'Equitable liens arise from two sources, viz.: (1) A written contract which shows an intention to charge some particular property with a debt or obligation; (2) is declared by a court of equity out of general consideration of right and justice as applied to the relations of the parties and the circumstances of their dealings in the particular case.'

This case was referred to and the enunciation approved in Folsom v. Farmers' Bank of Vero Beach, 102 Fla. 899, 136 So. 524.

It will be observed that the real estate and certain personal property being furnishings of certain houses located on the real estate were transferred by one and the same transaction. The contention of the appellant is that because the subject-matter of the sale was real and personal property and there was no allocation of the purchase price specifically to cover purchase of real estate and another allocation to specifically cover the purchase of the personal property, the vendor cannot enforce a vendor's lien against the real estate for the unpaid balance of the purchase price. And there are some respectable authorities sustaining his position. It will be seen, however, by reference to the abovecited Florida cases, that we have adopted the equitable doctrine of implied vendor's liens based upon equity, justice, and good conscience. The vendor's lien is an equity raised and administered by the courts of chancery, and it will be enforced or denied between the parties as the exigencies of each particular case may seem to require.

The allegations of the amended bill of complaint are sufficient to show that by the conveyance of the property to Harry Edelson and Anna Edelson, his wife, an estate by the entireties was created in them. It, therefore, follows that if the vendor should sue Harry Edelson at law for the $200 balance on the purchase price and should obtain judgment and have execution levied on this particular property, he would probably be met by the contention, whether good or not we are not now called upon to say, that the judgment could not be enforced...