Kimbrell v. Fink
| Decision Date | 16 February 1955 |
| Citation | 78 So.2d 96 |
| Parties | LeRoy KIMBRELL, Betty Jo Kimbrell, E. S. Thornton and Pennie Mae Thornton, Appellants, v. Charies E. FINK, doing business as Allied Construction Company, Appellee. |
| Court | Florida Supreme Court |
C. B. Peeler, Jacksonville, for appellants.
Robert E. Hucker, Jacksonville, for appellee.
This is an appeal from a final decree foreclosing a lien upon certain real estate and ordering a sale thereof for the purpose of satisfying the lien.
The facts out of which this controversy arose are as follows:
E. S. Thornton and Pennie Mae Thornton, his wife, owned a tract of land consisting of about 19 acres in Duval County. Some time prior to 1951 Betty Jo Kimbrell, the daughter of the Thorntons, and her husband LeRoy Kimbrell, built a small house on a portion of the 19 acres and were residing therein on the 27th of August, 1951, when an agent of the Allied Construction Company approached them with reference to making certain improvements thereon. As a result of these negotiations a contract was entered into between the parties in the sum of $650. At the same time the Kimbrells executed a note in the sum of $747.37 to the construction company, payable in thirty-six installments of $20.77 each to pay for such construction. In due course the work was completed. Five payments were made on the note by the Kimbrells.
Because of an unfavorable credit report on LeRoy Kimbrell shortly after the work was commenced and ostensibly for the purpose of protecting itself in the event the Kimbrells failed to meet the obligation evidenced by the note, and within the time allowed by the statute, the construction company filed a claim of lien against said property in the public records of Duval County setting forth therein that the last items of labor or material was performed and furnished on the 7th day of September, 1951.
After five payments were made, payments ceased on the note. So far as the record shows, the appellee, construction company, took no steps to enforce the obligation until September 1, 1953, when it filed its original complaint in the lower court for the purpose of declaring and foreclosing an equitable lien on the lands. The amended complaint on which the case was tried alleged the facts which are narrated above and in addition thereto averred that at the time the contract was entered into between the construction company and the Kimbrells, the Kimbrells falsely represented that they, the Kimbrells, were the owners of the property. The complaint further alleged that the Kimbrells were in the possession of said property with the knowledge, acquiescence and consent of the Thorntons and that the Thorntons knew that the Kimbrells had falsely represented to the construction company that they were owners of the land and that the construction company relied upon said representation in entering into said contract and performing said work. The complaint attempts to state a case to establish an equitable lien in the following language:
Answers were filed by the Thorntons and Betty Jo Kimbrell, testimony was taken before the court below as a result of which the lower court entered a final decree determining that the construction company had a lien upon the lands of the Thorntons and ordered so much of the property sold as should be necessary to satisfy the amount of said lien. The only basis set forth for decreeing a lien against the premises is found in paragraph 3 and reads as follows 'That the plaintiff has improved the real property owned by the defendants, E. S. Thornton and Pennie Mae Thornton, said property being described in the Amended Complaint and hereinafter described in this Decree, in the manner in which the defendant, E. S. Thornton, authorized the defendants, LeRoy Kimbrell and Betty Jo Kimbrell, to have done, which improvements have enhanced the value of said real property in the amount due the plaintiff and the defendants, E. S. Thornton and Pennie Mae Thornton, have received the benefits of said improvements, and the plaintiff is entitled to the balance due him for said improvements, as hereinafter stated and the plaintiff is entitled to a lien on the hereinafter described real property in order to secure payment of said sum.'
The remainder of the decree concerns itself with the mechanics of its enforcement and is not material to the question here decided.
The construction company relies upon Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 43 A.L.R. 1409; Foster v. Thornton, 131 Fla. 277, 179 So. 882; Lockett v. Robinson, 31 Fla. 134, 12 So. 649, 20 L.R.A. 67, and similar cases to sustain the decree of the...
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