Patterson Et Vir. v. Touchton Dinsmore , 105 Fla. 275 ( 1932 )

In this case attorneys were employed by the appellant, who was living separate and apart from her husband, to bring a suit for divorce and to recover from the husband possession of what was alleged to be the separate property of a married woman and interest in which was alleged to have been held by the husband in trust for the wife and to enjoin the disposition by the husband of the wife's separate property.

This suit was to charge the separate property of the married woman involved in the former suit for the payment of the service of the attorneys in that former litigation.

It is alleged in the bill in effect that as far as the litigation proceeded the results had been in favor of the complainant and complainant and defendant reached some amicable settlement between themselves and the attorneys were ordered by the complainant in those suits to dismiss the same, which they did.

There is no allegation in the bill of complaint showing that the separate property of the married woman was enhanced or increased as a result of the litigation. There is no showing that the result of that litigation placed her in possession or control of her separate property therein involved or that by reason of the service rendered by the attorneys she obtained the possession or control of any of her separate property not theretofore possessed and controlled by her or that she became vested with the legal title to separate property alleged to have been held in trust for her by her husband. Therefore, the bill of complaint fails to show that the service rendered inured to the enhancement, benefit or increase of the separate property of the married woman.

There was a demurrer filed and overruled to the amended bill of complaint. The order overruling the demurrer allowed the defendants until the succeeding Rule Day in which to file further pleadings.

The demurrer should have been sustained to the amended bill of complaint, as framed, on authority of Timberlake v. Semple, 86 Fla. 314, 97 So. 718.

The words in the Constitution, Sec. 2 Article XI, "for the benefit of her separate property" should not be held to mean that the contract or agreement must merely contemplate a "benefit of her separate property" but must be held to mean the contract or agreement must inure to the enhancement, increase or benefit of the separate property of the married woman.

Such may be said to be the effect of the holding in the cases of Vance v. Jacksonville Realty Mortgage Co., 69 Fla. 33,67 So. 636, and cases there cited; and Ziegler v. Ft. Lauderdale Securities Co. et al., opinion filed July 7, 1931, reported135 So. 838.

In this case the allegations of the amended bill of complaint sufficiently show a contract by a married woman, which she confirmed in writing, for services to be performed which were contemplated to inure to the benefit of her separate property, but this is not enough. It must be shown that such contemplated benefits did substantially by reason of the services rendered, inure to her separate property.

For the reasons stated, the order appealed from must be reversed, with directions that the demurrer be sustained and the complainants be allowed a period of time to be fixed by the chancellor in which to file a further amended bill, if they can and may, to meet the deficiencies herein pointed out and failing to do so, the cause be dismissed. It is so ordered.

Reversed and remanded.

WHITFIELD, ELLIS AND TERRELL, J.J., concur.

BROWN AND DAVIS, J.J., concur in part and dissent in part.