Howard v. Calhoun

• Decision Date: 09 March 1945
• Citation: 21 So.2d 361,155 Fla. 689
• Parties: HOWARD et ux. v. CALHOUN.
• Court: Florida Supreme Court

21 So.2d 361

155 Fla. 689

HOWARD et ux. v. CALHOUN.

Florida Supreme Court

March 9, 1945

Rehearing Denied March 29, 1945.

Edwin R Dickenson, of Tampa, for petitioners.

Paul Pinkerton, of Tampa, for respondent.

BROWN, Justice.

We doubt if the constitutional question is squarely presented by the facts in this case, which are set forth in the concurring opinion of Mr. Chief Justice CHAPMAN.

Section 1 of Article X provides that one thousand dollars worth of personal property 'shall be exempt from forced sale under process of any court.' The landlord had not attempted to obtain the forced sale of the property under legal process of any kind when the tenant brought replevin to secure possession of the property.

Under Section 85.19, F.S.1941, F.S.A., the apartment owner was given a lien on the personal property involved in this case as soon as it was placed in the apartment house, which lien was to continue until 'the amount payable for such occupancy,' shall have been fully paid. And section 85.20 makes it unlawful for the tenant to remove the property until the amount due the landlord has been fully paid.

Section 86.02 gave the landlord the right to retain possession of the personal property for a period not exceeding three months, as a means for the enforcement of the lien for rent.

Up to the time the tenant brought the replevin action, the landlord had not resorted to any forced sale under legal process, nor had he attempted to do so. Therefore section 1 of Art. X was not violated by the landlord.

If however, it were necessary for us to rule upon the constitutional question, we might well consider the fact that, in so far as Article X of the Constitution is concerned, the tenant could have given a lien on this property at any time, by a mortgage or otherwise, if he saw fit. We have long recognized that property exempt under Article X of the Constitution, whether real property or personal property, can be sold or mortgaged by the owner, whether he be a tenant or not, just as any other property. The question arises, if the tenant can voluntarily place a lien on his exempt property by mortgage can he not also do so by voluntarily moving it into his rented house or apartment, he being charged with knowledge of the fact that when a tenant moves furniture or other personal effects into a rented apartment, the law automatically attaches a lien thereto? If he voluntarily does this, does he not waive his right to claim any exemption as against the lien for the payment of the rent? This exact question does not appear to have been considered by our court.

In Hodges v Cooksey, 33 Fla. 715, 15 So. 549, 24 L.R.A. 812, and Schofield v. Liody, 35 Fla. 1, 16 So. 780, the landlord in each case had resorted to the use of legal process to enforce his lien for rent. Here the tenant, not the landlord, has resorted to legal process, within the three months period allowed the landlord for the retention of the property, to take from the landlord's premises personal property which had been made subject to the landlord's lien by the action of the tenant himself.

For these reasons the writ of certiorari is granted and the judgment of the Circuit Court of Hillsborough County reversing the order of the County Court of that County is hereby quashed, and the cause remanded for the entry by the Circuit Court of an appropriate judgment not inconsistent with the foregoing opinion.

CHAPMAN, C. J., concurs specially.

TERRELL, THOMAS, and SEBRING, JJ., concur.

BUFORD and ADAMS JJ., dissent.

CHAPMAN, Chief Justice (concurring specially).

It has been made to appear by petition for a common law writ of certiorari that Elmer A. Howard and wife, Mae Howard, were, during the months of August, September, October and November, 1942, owners of Howard Apartments situated in the City of Tampa and were licensed by the Florida Hotel Commission to operate the same. On August 15, 1942, they rented an apartment to V. L. Calhoun, who with his family resided therein until the last week in November, 1942, when he removed from the apartment without payment of past due rents.

The record discloses that V. L. Calhoun, during the period of occupancy, supra, took into the apartment various articles of furniture which were not removed therefrom by him when he left the apartment the latter part of November 1942. The furniture was left with his landlords, Elmer A. Howard, and wife, Mae Howard. On January 20, 1943, less than three months after removing from the apartment, V. L. Calhoun brought an action of replevin for the possession of the various articles of furniture against his landlords in the County Court of Hillsborough County, Florida.

The trial had resulted in a verdict and judgment for the landlords and pertinent portions of the judgment entered are, viz.: '* * * and the testimony having been taken before the Court and the case having been fully argued by counsel for the plaintiff and defendants, and the Court being fully advised in the premises, the Court thereupon finds a verdict in favor of the defendant, and that the defendants at the time of the levy of writ of replevin in said cause had and held a lien against the property levied upon under the writ of replevin, to-wit: ........, as alleged in the pleadings of the defendants, and the defendants were and are entitled to possession of the said described goods and chattels of the plaintiff, and to hold the same until the said lien should be paid and discharged in full, and that the amount due by the plaintiff to the defendants on account of said lien is the sum of $46.50, and that the defendants are entitled to a judgment against the plaintiff and the surety upon his bond for the amount of the said special interest and lien of the defendants, and the Court further finds and renders verdict accordingly, that the defendants are not guilty of conversion of any of the property of the plaintiff. * * *'

V. L. Calhoun, the tenant and plaintiff in the replevin suit, appealed from the judgment of the County Court of Hillsborough County, Florida, to the Circuit Court. The Circuit Court held that the property described in the replevin suit was exempt from forced sale under Section 1 of Article 10 of the Florida Constitution and the tenant, Calhoun, was entitled to the possession of the property and accordingly entered an order of reversal under date of November 27, 1944. In a petition for a common law writ of certiorari it is here contended that the order of reversal entered by the Circuit Court supra is a departure from the essential requirements of the law and should be quashed. Counsel for petitioners cite Midland Motor Car Co. v. Willys-Overland, Inc., 101 Fla. 837, 132 So. 692, and Ulsch v. Mountain City Mill Co., 103 Fla. 932, 138 So. 483, as authority for the remedy by them here pursued.

An answer to the following question should be decisive of this controversy: Where a tenant, the head of a family residing in the State of Florida, rents an apartment and moves his family and furniture thereto, and some three or four months thereafter removes from the apartment without payment of the stipulated rents, and the landlord retains possession of personal property of the tenant by him placed in the apartment for the non-payment of the agreed rents, is the lien provided for by Section 85.19, Fla.Stats.1941, F.S.A., superior to the rights of the tenant provided for by Section 1 of Article 10 of the Constitution of Florida--and may a tenant in replevin obtain possession of the detained personal property from his landlord?

Section 1 of Article 10 of the Constitution of Florida defines a homestead as consisting of one hundred and sixty acres of land or the half of one acre within the limits of any incorporated city or town owned by the head of a family residing in the State of Florida, together with one thousand dollars worth of personal property and the improvements on the real estate, which shall be exempt from forced sale under process of any court.

Section 4 of Article 10 provides for the alienation by a holder of a homestead by appropriate conveyance. The property exempted from forced sale as a homestead may be incumbered by mortgage executed according to law. See Smith v. Hogan, 117 Fla. 82, 157 So. 183. The head of a family may abandon the homestead. See O'Neal v. Miller, 143 Fla. 171, 196 So. 478, 129 A.L.R. 295. Where the head of a family erected rental property on part of the land comprising the homestead, then the homestead exemption rights were waived as to the part of the premises used for rental purposes. See McEwen v. Larson, 136 Fla. 1, 185 So. 866.

The case of Cathcart v. Turner, 18 Fla. 837, involved litigation between a landlord and tenant. The tenant contended that under Section 1 of Article 9 of the Constitution of 1868 crops grown by him on the landlord's land were exempt from forced sale to satisfy the landlord's lien for rents and advancements or supplies made to the tenant with which to make the crop. We held that the title to the crops produced were subordinate to the landlord's lien created by statute. This rule was reaffirmed in Hodges v. Cooksey, 33 Fla. 715, 15 So. 549, 24 L.R.A. 812; Schofield v. Liody, 35 Fla. 1, 16 So. 780. In the Hodges case, supra, Chapter 324, Acts of 1881, Laws of Florida, F.S.A. § 83.10, gave the landlord a lien on crops grown on the rented land for rent for the current year and for advances made for the sustenance or well being of the tenant by the landlord, and this is now the established rule in Florida.

Section 22 of Article 16 of the Florida Constitution requires that the Legislature shall provide for giving to mechanics and laborers an adequate lien on the subject matter of their labor. A Lien is a charge upon property for the payment of a...