Sheridan v. Respess

• Decision Date: 01 July 1941
• Citation: 3 So.2d 704,147 Fla. 626
• Parties: SHERIDAN et al. v. RESPESS et al.
• Court: Florida Supreme Court

3 So.2d 704

147 Fla. 626

SHERIDAN et al. v. RESPESS et al.

Florida Supreme Court

July 1, 1941

On Rehearing Aug. 1, 1941.

Rehearing Denied Sept. 16, 1941.

Appeal from Circuit Court, Duval County; Bayard B. Shields judge.

George M Powell, of Jacksonville, for appellants.

James R Knott, of Jacksonville, for appellee.

BUFORD, Justice.

Appeal brings for review final decree establishing an alleged implied lien for the purchase price of property purchased by the defendant, a married woman, from the plaintiff and to secure the payment for which the married woman, not being joined by her husband, executed pretended notes and mortgage, which she did not pay and which were null and void as her personal obligations.

The allegations of the bill of complaint were sufficient to show that plaintiff could have by prompt action maintained a suit to have established and enforced an implied or equitable lien for the purchase price. See Rewis v. Williamson, 51 Fla. 529, 41 So. 449; Aycock Bros. Lumber Co. v. First National Bank, 54 Fla. 604, 45 So. 501; Shaylor v. Cloud, 63 Fla. 608, 57 So. 666, 39 L.R.A.,N.S., 1171, Ann.Cas.1914A, 277. Such a lien, however, does not result from any agreement but is a right given by implication of law and enforcible in equity where the vendor is entitled to it. See Shaylor v. Cloud, supra.

In the case of Special Tax School District No. 1 of Orange County, et al. v. Hillman et al., 131 Fla. 725, 179 So. 805, we held: 'Where action of school trustees in giving notes and mortgage for land purchased for erection of school building was ultra vires and void because statutory requirements were not complied with, a vendor's lien was not created, but complaining vendors were vested with an equitable lien, in nature of vendor's lien, to secure payment to them of their interest in actual value of property conveyed to school trustees, as distinguished from the agreed purchase price.'

And also: 'A vendor's lien is enforceable in equity at any time before the remedy at law for recovery of unpaid part of purchase price of land is barred by statute of limitations.'

And also: 'Where notes and mortgage given by school trustees for purchase price of land on which school building was erected were void for failure to observe statutory requirements, so that vendors were entitled to equitable lien in nature of vendor's lien to secure payment of actual value of land, suit to enforce the equitable lien instituted within three years after school district ceased to pay interest on unpaid balance of purchase price was maintainable, since action at law on debt was not barred by limitations.'

The bill of complaint showed that the three year statute of limitations had expired. The defendant moved to dismiss the bill on that ground, which motion was denied, and the defendant pleaded the statute of limitations.

The court entered a decree adjudicating the establishment of the equitable lien and required the defendant to pay interest on the amount of the lien from the date of the transaction to the date of the decree. This was error.

The allegations of the bill of complaint, however, were sufficient to show that the plaintiff was entitled under the provisions of Section 2, Article XI of the Constitution to charge in equity and sell the described real estate as the married woman's separate property for the purchase money thereof. This provision of the Constitution does not create a lien. See Tallahassee Variety Works v. Brown, 106 Fla. 599, 138 So. 759, 144 So. 848; Stokes v. Home Owners Loan Corp., 138 Fla. 209, 189 So. 657; Summer v. Osborne, 101 Fla. 742, 135 So. 513; Citizens Bank, etc., Co. v. Smith, 97 Fla. 601, 121 So. 900.

That interest may be allowed and charged against the separate property of a married woman in such cases as this has been settled by this Court in the case of McGill and McGill v. Art Stone Construction Co., 57 Fla. 498, 49 So. 539, 131 Am.St.Rep. 1106; Garvin v. Watkins, 29 Fla. 151, 10 So. 818; Hoffman Construction Co. v. Ward, 97 Fla. 530, 121 So. 800; McMillan et al. v. Warren, 59 Fla. 578, 52 So. 825; Brite et vir. v. Orange Belt Securities, Co., 133 Fla. 266, 182 So. 892.

The three year statute of limitations, Comp.Gen.Laws 1927, § 4663, is not applicable in a suit to charge in equity and sell a married woman's separate property for the purchase money thereof, because such proceeding is one cognizable exclusively in equity. See Hayes v. Belleair Dev. Co., 120 Fla. 326, 162 So. 698 and cases there cited. See also Nuveen v. Board of Public Instruction of Gadsden County, Florida, 5 Cir., 88 F.2d 175.

In this case there never was any enforcible action at law because there was never any binding contract and in such cases as is seen from the authorities cited, the statutes of limitations do not apply but the doctrine of laches may be invoked in proper cases. No such laches is shown in this case as to bar recovery.

For the reasons stated, the decree is reversed and the cause remanded with directions that a decree be entered not inconsistent with the views herein expressed.

So ordered.

BROWN, C. J., and WHITFIELD and ADAMS, JJ., concur.

On Petition for Rehearing.

WHITFIELD, Justice.

Each party has filed a petition for rehearing and for a modification of the decree rendered here on appeal from a final decree of the Circuit Court rendered August 2, 1940.

It is alleged for appellants that after the final decree was made the plaintiffs, appellees here, conveyed all of their right title, interest and claim in and to the property in controversy without notice to the appellants; therefore the plaintiffs, appellees, can no longer maintain this suit. It is further alleged that appellants, defendants below, were divorced May...