Geiser v. Permacrete, Inc.

• Decision Date: 07 November 1956
• Docket Number: No. 27068,27068
• Citation: 90 So.2d 610
• Parties: Charles GEISER and Millard B. Conklin and United States of America, Appellants, v. PERMACRETE, Inc., et al., Appellees.
• Court: Florida Supreme Court

Page 610

90 So.2d 610

Charles GEISER and Millard B. Conklin and United States of America, Appellants, v. PERMACRETE, Inc., et al., Appellees.

No. 27068.

Supreme Court of Florida, Division B.

Nov. 7, 1956.

Rehearing Denied Dec. 4, 1956.

Millard B. Conklin, Daytona Beach, for appellants.

Raymond, Wilson & Karl, Anthony J. Grezik, Massfeller & Stewart and Berrien H. Becks, Daytona Beach, for appellees.

O'CONNELL, Justice.

Appellants Charles Geiser and Millard B. Conklin are assignees of a third mortgage on real property which was the subject of a foreclosure suit wherein a first and second mortgage were foreclosed by a prior mortgagee not a party to this appeal. By summary final decree the trial court adjudged the appellants' third mortgage to be good and valid and the assignment to appellants duly made, but that the lien of such mortgage was inferior to liens claimed by appellees under the Mechanics' Lien Law, F.S. Chapter 84, F.S.A.

The court found the mechanics' liens to be superior to the third mortgage lien since their priority dated 'from the first visible commencement of operations which were undertaken prior to October 12, 1953'. Appellants' mortgage was dated September 30, 1953 but was not recorded until October 14, 1953. The appellees, however, did not begin furnishing materials until after October 14, 1953, although other work had commenced prior to that date. Each of the appellees appears to have contracted directly with the then owner of the property. There does not appear to have been a general contractor for the improvement.

Appellants contend that the lower court erred in both law and fact. The first visible operations commenced after October 14, 1953, they say. The lower court had before it the affidavit of the owner and those of two materialmen stating that the work started prior to October 14, 1953. No opposing affidavits were filed and we believe the court was correct in determining the date of visible commencement of operations to have been prior to October 14, 1953 as it did in the summary final decree.

The appellants next contend that even if the first work did commence prior to the recording of the mortgage, such would not, under F.S. § 84.03, F.S.A., and a previous holding of this Court, give any priority to appellees' liens over their mortgage. They cite the case of W. T. Price Dredging Corp. v. Suarez, 147 Fla. 253, 2 So.2d 740, as authority for this contention. In that case this Court held that certain mechanics' liens were superior to that of a mortgage lien but that the lien of the dredging corporation was inferior thereto.

The facts were not fully set out in the published opinion in the Price Dredging case. Appellant assumes and construes the facts in that case to be: (1) that the improvement involved there was visibly commenced and some materialmen furnished materials prior, in time, to the recording of a mortgage there in question; (2) that the dredging company furnished the materials for which it claimed a lien after the recording of the mortgage, and (3) that because it furnished its materials after the recordation of the mortgage, the mortgage lien was held to be prior in dignity to the mechanic's lien claimed by the dredging company, although the mortgage lien was held to be inferior in dignity to the liens of those who furnished materials prior to the recording of the mortgage.

If the facts in the Price Dredging case were as contended by appellant that case would be authority for appellants' contention, but from a reading of the record and briefs in that case we find the facts to be otherwise.

The record and briefs in that case reveal that the dredging company had actually delivered materials to the property improved before the recording of the mortgage but that the dredging company acknowledged the mortgage to be superior to its lien. It appears therefore that it was for this reason alone that this court held the dredging company's lien to be inferior to the mortgage lien there involved.

Prior to the enactment of the Mechanics' Lien Law, F.S. Chapter 84, F.S.A., our holding was that 'there is no blanket lien * * * which attaches upon the property from the moment the first step is taken toward the construction of the contemplated improvement. The liens are acquired individually * * * and, if the material is furnished or the labor supplied upon a continuing contract to supply such material or labor for the building or improvement contemplated, the lien attaches or in acquired from the moment the first material is furnished or labor supplied under the [individual] contract.' Palm Beach Bank & Trust Co. v. Lainhart, 84 Fla. 662, 95 So. 122, 125; People's Bank of Jacksonville v. Arbuckle, 82 Fla. 479, 90 So. 458. Then, in 1936, we adopted the Uniform Mechanics' Lien Law. We seem to have been the only State to do so. Subsequently, in the Price Dredging Corporation case, supra, we construed the provision to provide a blanket lien in favor of all mechanics and materialmen, relating back to the date when operations were first visibly commenced, because we found that the statute held that the liens "shall relate to and take effect from the time of the [first] visible commencement of operations". [147 Fla. 253, 2 So.2d 741] In the more recent case of Reading v. Blakeman, Fla., 66 So.2d 682, 683, we held that a mortgagee was 'chargeable with notice, of Section 84.03(1), F.S., F.S.A., which provides that liens shall relate to and take effect from the [first] visible commencement of operations.'

In Section 283, Kooman, Florida Chancery Pleading and Practice, page 639, we find the following:

'Under the prior statutes...