Pierson v. Reinhardt, Etc.

Buford, C.J. The appeal in this ease is from an order overruling a • demurrer of the defendant in the court below to the bill of complaint. The bill of complaint was one to subject the separate property of a married woman to the payment of an obligation alleged to have been incurred with her sanction and consent, for materials furnished and used for the benefit of her separate statutory property specifically described in the bill of complaint. The bill of complaint was filed oh the 8th day of February, 1929, and it is alleged that the furnishing of the material was completed on the 26th day of June, 1926. It is alleged that the defendant, Bertha E. Pierson, was the grantee in a warranty deed from Emma A. Pierson and her husband, Everett H. Pierson, dated December 29th, 1927, and recorded January 19th, 1928; that the deed to Bertha E. Pierson is void as against the complainant because it was executed without valuable consideration. The bill of complaint does not show that any notice of intention to claim lien was filed in the office of the Clerk of the Circuit Court. The complainant claims his *1394 right of action under the provisions of See. 2, Article XI of the Constitution of Florida. The defendant’s demurrer presents the question as to whether or not in the enforcement by the complainant of his rights under the section of the Constitution above referred to, he is confined to the statutory procedure enacted for that person. The record shows that the complainant furnished material for the improvement of a building situated on real estate which was the separate property of a married woman and that such material was furnished with her knowledge and assent. Section 2854 R.G.S., 4551 C.G.L., definitely prescribes the manner in which one so furnishing such materials under such conditions may enforce his claim against the property improved. It is needless for us' to quote this section because it is available to the Bench and the Bar. The last paragraph of the section mandatorily requires the filing of the notice of lien at most within three months after the entire performance of the labor or the entire furnishing of the materials. Though it may be filed for record at any time within that period, after a contract in writing has been entered into. This part of the section also provides that suits in equity to enforce the rights of parties performing labor or furnishing materials as provided for in this section must be brought within twelve months from the filing of the notice of the lien. The above mentioned provisions of the statute are not in conflict with the organic law, but provide a definite method for the application of the organic law in such cases. The order overruling the demurrer should be reversed, with directions that the bill- of complaint be dismissed. It is so ordered. *1395 Reversed. Ellis and Brown, J.J., concur. Whitfield, I’. J., and Terrell and Davis, J. J., concur in the opinion and judgment.