Logan Moore Lumber Co. v. Legato

• Citation: 131 So. 381,100 Fla. 1451
• Parties: LOGAN MOORE LUMBER CO. v. LEGATO et al.
• Decision Date: 09 December 1930
• Court: United States State Supreme Court of Florida

131 So. 381

100 Fla. 1451

LOGAN MOORE LUMBER CO. v. LEGATO et al.

Florida Supreme Court

December 9, 1930

En Banc.

Suit by the Logan Moore Lumber Company against Joseph A. Legato and another. From an order dismissing the bill, petitioner appeals.

Affirmed.

TERRELL C.J., dissenting. Appeal from Circuit Court Palm Beach County; C. E. Chillingworth, judge.

COUNSEL

Joe Hatfield, of West Palm Beach, for appellant.

OPINION

BUFORD J.

In this case the appellant exhibited its bill to subject certain property described in the bill to the payment for materials furnished by the appellant to Joseph A. Legato and Angelina Legato to be used in improvements constructed on the lands which were sought to be subjected to the payment of the obligation.

It was alleged in the bill that Legato and wife were the owners of the property by entireties. It was alleged that the materials were furnished from the 22d day of June, 1926, to the 3d day of September, 1926. The suit was filed January 14, 1928.

Demurrer was filed to the bill and was sustained. The bill was dismissed, from which order appeal was taken.

The theory of the complainant in the court below appears to have been that the interest of the wife in the estate by the entireties of the lands constituted her separate statutory property, and that therefore a bill in equity might be maintained against the interest of the wife in the property and that the like interest of the husband might also be subjected in the same suit to the payment for materials used in improving the property.

It is well settled in this jurisdiction that the right to enforce a lien for labor performed or materials furnished against an estate by entireties is purely statutory.

In Allardice & Allardice, Incorporated, v. Weatherlow, 98 Fla. 475, 124 So. 38, 39, this court, speaking through Mr. Justice Brown, say:

'The right to enforce a lien for labor performed or material furnished against an estate by entireties is purely statutory, and a bill to enforce such a lien is demurrable, when it fails to allege that the labor was performed or the materials were furnished with the knowledge or assent of husband and wife, or under a written contract with them, as required by the statute governing the subject. Chapter 9296, Laws of 1923 (sections 5360-5362, Comp. Gen. Laws); Ferdon v. Hendry Lumber Co., 97 Fla. 283, 120 So. 335; Parker v. Gamble, 96 Fla. 343, 118 So. 21.'

In Anderson v. Trueman et al., opinion filed September 4, 1930, reported in 130 So. 12, 14, this Court, speaking through Mr. Chief Justice Terrell, say:

'It is also contended by appellees that the lands described in the mortgage being held by them by the entireties was in like legal status as any other separate property of a married woman, and since as to them it was a mere surety for the debt of the husbands it is now released by reason of the rule announced herein as to discharge of sureties.

'We do not think this contention can be sustained. An estate by the entireties is of common-law origin and is not a part of the 'separate property' of a married woman as referred to in article 11 of the Constitution and the married women's property acts of this state (Comp. Gen. Laws 1927, §§ 5865-5872). Allardice v. Weatherlow, 98 Fla. 475, 124 So. 38; 13 R. C. L. 1101. An estate by the entireties is...