Alsheimer v. Palmer

Buford, C. J. This was a suit by a materialman to foreclose a lien acquired under provisions of sections 3517 and 3518 R. G. S., 5380 and 5381, C. G. L., the materialman being in privity with the owner. The record shows that the last services by the material-man were furnished April 23, 1927; that he filed notice of lien which was recorded on the 12th day of July, 1927; that the suit was filed on July 7th, 1928. A demurrer was sustained to the bill of complaint and the bill dismissed because the suit was not instituted within twelve months after labor and material were furnished by the materialman. The sole question involved here is whether or not under the provisions of section 3520 R. G. S., 5393 C. G. L., a materialman in privity with the owner who files and has recorded a materialman’s lien as provided *225 by statute within three months after the last furnishing of labor or material, may bring his suit against the owner within twelve months after the filing and recording of the lien, or must he bring his suit within twelve months after the last furnishing of labor or material. In sustaining a demurrer and dismissing the bill the Circuit Court held that the suit under such condition could only be brought within twelve months after the last furnishing of labor or material. The same question was presented to this Court in the ease of Padgett vs. Douglass, 99 Fla. 754, 127 Sou. 495. In that case the lower court had held that the claimant was entitled to file his suit against the owner at any time within twelve months after the notice of lien was filed. This Court by memorandum order, without opinion, affirmed the decree. In the case of Booker & Co. vs. Leon H. Watson, Inc., 96 Fla. 671, 119 Sou. 104, and 123 Sou. 837; and Carter vs. Gearty, 90 Fla. 170, 105 Sou. 329, the question here involved was not presented, though in the ease of Booker & Co. vs. Leon H. Watson, Inc., it was inferentially held that the suit could be brought within twelve months after the filing and recording of the lien, if lien was recorded. This inference may also be drawn from the opinion and judgment in the ease of Carter vs. Gearty, supra. The statute must control and it appears, to us that the language of the statute is • clear and unambiguous. The statute provides: “When there has been no record of a notice of lien, suit to enforce lien (if it exists without such record) must be brought within twelve months from the performance of the work or the furnishing of the materials, and if there has been such record, the suit must be brought within twelve months from the time of such record. ’ ’ Unless this statute does not mean what it appears to' mean, that is that the suit may be brought by one in privity with the owner against the owner and all subse *226 quent purchasers or creditors at any time within twelve months after the recording of the lien, if the lien be recorded within the statutory period, that latter provision of the statute could have no beneficial effects on the rights of the materialmen oh laborer whatever. For .the material-man or laborer to maintain his suit against a subsequent purchaser or creditor, he must be in position to maintain his suit against the owner. His lien is against the owner’s property and against no other property. It is the property which he proceeds to subject to the lien and for a statute to eohfer upon one the right of action against a subsequent purchaser or creditor and at the same time deprive him of his right of action against the debtor and owner of the property upon which lien is claimed will be to confer upon him a naked right from which he could derive no benefit. The statute here under consideration is not strictly speaking a statute of limitatioh, but it is a statute creating a statutory lien and providing the period of time during which that lien will continue to exist. Without the record of notice asr-provided by statute the lien only exists as against those as to whom no notice is required for a period of twelve mo'nths from the date of the last furnishing of labor or material. But, if the lien is filed and recorded, as provided by statute, then the lien continues to exist as against the owner and subsequent purchasers and creditors for a period of twelve months after the recording of the lien within the statutory period of three months. American Mill and Lumber Co. vs. Clemmons, 134 So. 588. For the reasons stated, the orders and decrees appealed from should be reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered. Reversed and remanded. Whitfield, Ellis, Terrell and Davis, J.J., concur. *227 Brown, J., dissents.