Howard v. Calhoun

We doubt if the constitutional question is squarely presented by the facts in this case, which are set forth in the concurring opinion of Mr. Chief Justice CHAPMAN.

Section 1 of Article X provides that one thousand dollars worth of personal property "shall be exempt from forced sale under process of any court." The landlord had not attempted to obtain the forced sale of the property under legal process of any kind when the tenant brought replevin to secure possession of the property.

Under Section 85.19, F.S. 1941, the apartment owner was given a lien on the personal property involved in this case as soon as it was placed in the apartment house, which lien was to continue until "the amount payable for such occupancy," shall have been fully paid. And Section 85.20 makes it unlawful for the tenant to remove the property until the amount due the landlord has been fully paid.

Section 86.02 gave the landlord the right to retain possession of the personal property for a period not exceeding three months, as a means for the enforcement of the lien for rent.

Up to the time the tenant brought the replevin action, the landlord had not resorted to any forced sale under legal process, nor had he attempted to do so. Therefore Section 1 of Art. X was not violated by the landlord.

If however, it were necessary for us to rule upon the constitutional question, we might well consider the fact that, in so far as Article X of the Constitution is concerned, the tenant could have given a lien on this property at any time, by a mortgage or otherwise, if he saw fit. We have long recognized that property exempt under Article X of the Constitution, whether real property or personal property, can be sold or mortgaged by the owner, whether he be a tenant or not, just as any other property. The question arises, if the tenant can voluntarily place a lien on his exempt property by mortgage, can he also do so by voluntarily moving it into his rented house or apartment, he being charged with knowledge of the fact that when a tenant moves furniture or other personal effects into a rented apartment, the law automatically attaches a lien thereto. If he voluntarily does this, does he not waive his right to claim any exemption as against the lien for the payment of the rent? This exact question does not appear to have been considered by our court.

In Hodges v. Cooksey, 33 Fla. 715, 15 So. 549, and Schofield v. Liody, 35 Fla. 1, 16 So. 780, the landlord in each case had resorted to the use of legal process to enforce his lien for rent. Here the tenant, not the landlord, has resorted to legal process, within the three months period allowed the landlord for the retention of the property, to take from the landlord's premises personal property which had been made subject to the landlord's lien by the action of the tenant himself.

For these reasons the writ of certiorari is granted and the judgment of the Circuit Court of Hillsborough County reversing the order of the County Court of that County is hereby quashed, and the cause remanded for the entry by the circuit court of an appropriate judgment not inconsistent with the foregoing opinion.

CHAPMAN, C. J., concurs specially.

TERRELL, THOMAS and SEBRING, JJ., concur.

BUFORD and ADAMS, JJ., dissent.