Tallahassee Variety Works v. Brown , 106 Fla. 599 ( 1932 )

This appeal is from a final decree dismissing a bill of complaint purposed to enforce a claim for materials furnished and used in the construction of a building on the separate real property of a married woman with her knowledge and assent.

The record reveals that the appellee, Mrs. Allie Yawn Brown owned Lot six (6) of Block B Highland Park Subdivision of Tallahassee, Leon County, Florida, and that with her knowledge and consent, her husband, appellee B. W. Brown entered into a contract with R. H. Hancock to construct a bungalow on said lot at a named consideration.

The bungalow was constructed in compliance with the terms of the contract to which construction appellant furnished material to the amount of $940.23, that $246.90 of said amount was paid by B. W. Brown leaving a balance due appellant of $693.33 no part of which has been paid. It is not denied that these materials went into the construction of the bungalow. It is also shown that when the bungalow was completed, it was worth more than the contract price and that appellees have entered into a contract to sell it at a very substantial profit.

The Chancellor treated the bill as one to foreclose a statutory lien and dismissed it on the theory that there was no showing of privity between complainant and defendants, that the building was constructed by an independent contractor for an agreed consideration, that the complainant at no time served such a cautionary notice on the defendants as would bind them or either of them and that priority as to complainant's claim was not established.

We think this holding was erroneous. The clear import of the bill was to subject the separate real property of Mrs. Brown, under Section two, Article eleven of the constitution, to the payment of appellant's claim because it represented the price of material purchased by Mr. Brown from appellant and used with Mrs. Brown's knowledge and consent in the construction of a building on her separate property as described herein.

It is shown that appellant recorded its notice of lien as required by law but this was not material as statutory or mechanic's and materialman's liens as provided by Sections 3498 and 3499 Revised General Statutes of 1920 (Sections 5352 and 5353 Compiled General Laws of 1927) have no application to the liability of the separate property of a married woman under section two, Article eleven of the constitution, both being distinct and independent remedies. The constitutional provision does not create a lien but merely authorizes courts of equity to charge the property of the married woman with the payment of such demands and until proceedings are brought to do this, the owner may sell and dispose of her property as the law provides. Smith vs. Gauby, 43 Fla. 142, 30 So. 2d 683; Agin vs. Gainesville Planing and Coffin Co., 80 Fla. 679, 87 So. 2d 63.

Section two of Article eleven of the Constitution is as follows:

"A married woman's separate real or personal property may be charged in equity and sold, or the uses, rents and profits thereof sequestrated for the purchase money thereof; or for money or thing due upon any agreement made by her in writing for the benefit of her separate property; or for the price of any property purchased by her, or 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."

For the reasons as thus announced, the judgment below is reversed and the cause remanded.

Reversed.

WHITFIELD, TERRELL, BROWN AND DAVIS, J.J., concur.

BUFORD, C.J., AND ELLIS, J., dissent.

ON REHEARING.