Pierson v. Reinhardt

• Citation: 136 So. 250,101 Fla. 1392
• Court: Florida Supreme Court
• Decision Date: 21 July 1931
• Parties: PIERSON v. REINHARDT.

136 So. 250

101 Fla. 1392

PIERSON v. REINHARDT.

Florida Supreme Court, Division A.

July 21, 1931

On petition for rehearing.

Petition denied.

For former opinion, see 133 So. 553.

COUNSEL Robert M. Thomson, of Miami, for appellant.

Henry K. Gibson, of Miami, for appellee.

OPINION

PER CURIAM.

Petition for rehearing denied without opinion.

DISSENTING

BROWN J. (dissenting).

Upon further consideration of this case on petition for rehearing I have reached the conclusion that the former opinion, 133 So. 553, and judgment in this case should be modified. As it stands, it would require one who had dealings in privity with the owner to file a notice of lien under section 4551, Comp Gen, Laws 1927, in order to preserve the right to charge the separate property of a married woman with the payment of an obligation for labor and material used with her knowledge or assent in the construction of a building upon her property.

I do not believe it was the purpose of this statute to give a married woman any additional right or to impair or unduly limit the right of one furnishing labor and material in the construction of a building on her separate property with her knowledge and consent. I think the real purpose of this statute was not to protect the married woman in such cases but to afford protection to one so dealing with her as against the claims of third parties accruing after the filing of the notice provided for in that statute.

This bill was filed under section 2 of article 11 of the Constitution. This section was designed for the protection of persons dealing with a married woman with reference to her separate property. It created rights against a married woman which did not exist theretofore, or under the common law. It provided that a married woman's separate real or personal property may be charged in equity and sold to enforce the payment of certain obligations, with reference to her separate property therein mentioned, one of which is 'for labor and material used with her knowledge or assent in the construction of buildings, or repairs, or improvements upon her property, or for agricultural or other labor bestowed thereon, with her knowledge and consent.'

Following this is section 3 which reads: 'The Legislature shall enact such laws as shall be necessary to carry into effect this article.'

Strictly speaking, section 2 does not in haec verba create a lien, but a right which may be enforced against the property by a bill of equity. Smith v. Gauby, 43 Fla. 142, 30 So. 683. In the case of Nutt v. Codington, 34 Fla. 77, 15 So. 667, it was held that while a married woman is incapable of making a contract for labor performed or material furnished on her separate property that would bind her in a personal judgment, her separate property might be charged under this section of the Constitution, regardless of whether the statute as to mechanics' and materialmen's lien created a lien or not, which was left undecided. This section was further construed in Micou v. McDonald, 55 Fla. 776, 46 So. 291. It was held in that case that the effect of this section is to remove from married women, under certain restrictions, the common law disability of coverture in the cases therein enumerated, and to enable her in such cases to assume obligations that can be charged in equity upon her separate property.

In Lerch v. Barnes, 61 Fla. 672, 54 So. 763, it was very plainly indicated that it was not the intention of article 11 of the Constitution to prevent the Legislature from making laws dealing with the contractual rights and powers of married women in other respects, so long as there was no conflict with the provision of such article. It was said in the opinion of Justice Hocker in that case:

'It will be observed that the first section contains no limitations upon the power which might be conferred on her by the Legislature of disposing of her separate property, except that it is exempted from liability for the debts of her husband, without her consent given in some instrument in writing, executed according to the respective conveyances by married women. The second section gives to the court of equity exclusive jurisdiction of certain kinds of obligations which she may make when there is an attempt to enforce their payment from her separate property. Jurisdiction of these, therefore, cannot be conferred by the Legislature on a court of law. Micou v. McDonald, 55 Fla. 776, text 780, 46 So. 291. Otherwise than as thus indicated, the Constitution contains no limitations upon the legislative power in the making of laws dealing with the contractual rights which it may confer upon married women, and with their control and disposition of separate property. These matters are left by the Constitution to legislative action and control.'

Another case showing the disposition of this court to give a liberal construction to article 11 is the case of Nadel v. Weber, 70 Fla. 218, 70 So. 20, L. R. A. 1916D, 1230, in which the opinion was written by Mr. Justice Ellis. See, also, Blood v. Hunt, 97 Fla. 551, 121 So. 886, in which the general subject is ably reviewed by Mr. Justice Whitfield.

It would seem from the general principles enunciated by Mr. Justice Terrell in Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 129, 43 A. L. R. 1409, and in Craven v. Hartley (Fla.) 135 So. 899, decided at the present term, and in Phillips v. Atwell, 76 Fla. 480, 80 So. 180, that one who has furnished labor and material for the improvement of a married woman's separate property, with her knowledge and consent, has something in the nature of an inchoate equitable lien. It was said in that case that an equitable lien is 'a right of special nature over the thing, which constitutes a charge or incumbrance upon the thing, 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 * * * applied upon the demand of the creditor in whose favor the lien exists.'

Section 4551, Comp. Gen. Laws 1927, is derived from two legislative acts, one adopted in 1915, and the other, amendatory thereto, adopted in 1923. Neither of these acts creates any mechanics' or materialman's lien upon the separate property of a married woman. It seems to have been the main purpose of both these acts to protect the inchoate equitable lien created by the Constitution in behalf of any person furnishing labor or material used upon the separate statutory property of a married woman with her knowledge or assent, as against persons acquiring claims of a like nature, or purchasing the property from her, subsequent to the filing of the 'lis pendens' provided for by the first act, or the 'notice of lien' provided for in the second act.

Surely it was not the purpose of either of these statutes to enable a married woman to escape the liability created by section 2 of article 11 merely because of a failure of a person dealing directly with her to file such notice. It is true that any one desiring to secure the protection against the rights of third parties, which the filing of the notice under the statute provides, must comply with the statute, but I do not think that the statute should be construed to give a married woman any greater protection than is afforded her by the constitutional provision as against a person dealing directly with her. Our general statute with reference to mechanics' and materialmen's liens (section 5380 Comp. Gen. Laws 1927) provides that, as against the owner of property upon which a lien is claimed, the lien shall be acquired by any person in privity with such owner by the performance of the labor or the furnishing of the material; and that, as against purchasers and creditors of such owner without notice, such lien shall be acquired upon real estate only from the time of the record in the office of the clerk of the circuit court of the county where the real estate lies of a notice of such lien, which notice must be filed within three months after the entire performance of the labor or the furnishing of the material. Different rules apply to persons not in privity with the owner, which are not material here. See section 5381 Comp. Gen. Laws 1927. And section 5393, Comp. Gen. Laws 1927, provides that 'when there has been no record of a notice of lien, suit to enforce lien (if it exists without such record) must be brought within twelve months from the performance of the work or the furnishing of the materials, and if there has been such...