Phelps v. Higgins

• Decision Date: 18 May 1960
• Docket Number: No. 1600,1600
• Citation: 120 So.2d 633
• Parties: C. B. PHELPS, Appellant, v. Lewis C. HIGGINS and Leota C. Higgins, sometimes known as Leota I. Higgins, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 633

120 So.2d 633

C. B. PHELPS, Appellant, v. Lewis C. HIGGINS and Leota C. Higgins, sometimes known as Leota I. Higgins, his wife, Appellees.

No. 1600.

District Court of Appeal of Florida, Second District.

May 18, 1960.

Daniel J. LeFevre, Warrick, Cargill & LeFevre, Winter Park, for appellant.

Gladstone L. Kohloss, Orlando, for appellees.

STEPHENSON, GUNTER, Associate Judge.

C. B. Phelps, plaintiff in the lower court, brings this interlocutory appeal complaining of an order of the trial court transferring his cause of action to the law side of the court.

Plaintiff filed a complaint in chancery alleging that he and the defendants entered into an oral contract to jointly purchase and jointly own a residence located in Winter Park, Orange County, Florida; that pursuant to said verbal agreement the plaintiff furnished $3,500 to the defendant Leota C. Higgins as the plaintiff's share of the down payment; that contrary to said oral agreement the defendant Leota Higgins took title to said property in her own name and though often requested by the plaintiff, said defendants have jointly and severally refused to convey to plaintiff his alleged undivided one-half interest.

Further the complaint reveals that in addition to the $3,500 above mentioned plaintiff alleges that he has paid an additional $600 to be applied on the above described residences.

The plaintiff requested the establishment of an equitable lien for his interest or in the alternative that the property be sold.

The defendants-appellees filed a motion to dismiss based solely on the ground 'that the complaint failed to state a cause of action upon which relief may be granted.' Said motion was duly noticed for hearing and after argument of counsel the Court entered the following order:

'This cause coming on to be heard on Motion to Dismiss and upon argument of counsel, and the Court being of the opinion that the plaintiff had adequate remedy at law, it is therefore Ordered, Adjudged and Decreed that the Motion to Dismiss is hereby denied and this cause be and it is hereby transferred to the law side of the Court. Done And Ordered * * *.'

Appellant contends among other things that that portion of the order denying appellees' motion to dismiss is in direct conflict with that portion of said order directing the cause to be transferred to the law side of the court. It appears to us that the order denying the motion to dismiss cannot be reconciled with the order directing the transfer. Denying the motion to dismiss is in effect holding the complaint stated a cause of action upon which relief could be granted. Appellant further contends that he was entitled to amend the complaint, if in fact it did not state a cause of action before the court could enter an order to transfer.

Although the record here does not reflect a motion to transfer, we think this cause is controlled by the language of Chief Justice Drew in the case of Kingston v. Quimby, Fla., 80 So.2d 455, 457, and speaking for the Court he stated:

'The motion to transfer made by petitioner set out as a ground that the respondent had an adequate remedy at law. We have interpreted the court's denial of the motion as being made after a consideration of this ground. We point out, however, that before a cause is transferred to the law side of a court it should clearly appear in the record after appropriate motion that the court has ruled that no cause of action in equity is stated and that plaintiff has had adequate opportunity to amend to meet objections if he can do so. Only when such a proper predicate has been laid is a cause properly subject to transfer to the law side of the court.' (Emphasis supplied.)

Appellees in their brief are in agreement that the complaint should not have been transferred to the law side in its present state. However, appellees by cross-assignment contend the trial court erred in denying their motion to dismiss.

An equitable lien is not an estate or property in the land itself nor a possessory right of any kind. It is a charge or encumbrance upon the land 'so that the very thing itself may be proceeded against in an equitable action, and either sold or sequestered under a judicial decree, and its proceeds in the one case, or its rents and profits in the other, applied upon the demand of the creditor in whose favor the lien exists.' Davidson v. S. S. Jacobs Company, Fla.1957, 93 So.2d 731; Jones v. Carpenter, 1925, 90 Fla. 407, 106 So. 127, 129, 43 A.L.R. 1409. Equitable liens may arise, by operation of law from the conduct of the parties, from a variety of transactions to which equity will cause them to attach. Dewing v. Davis, Fla.App.1960, 117 So.2d 747.

It is observed that in the leading case of Jones v. Carpenter, supra, the remedy through which the receiver of the corporation whose funds had been fraudulently misused by an officer therein in the improvement of his own property recovered the misappropriated corporate funds was by the assertion of an equitable lien against the property so improved; there was no claim that the defendant held the land as constructive trustee for the corporation, which is the basis of many decisions on factual situations similar in nature to those in Jones v. Carpenter, supra, and to those in the instant case. See Annotation 43 A.L.R. 1415, 1441.

In Chlebeck et al. v. Mikrut et al., 336 Mich. 414, 58 N.W.2d 125, the plaintiffs ...