By reference to the record in the case of Craven v. Hartley,95 Fla. 704, 116 South. Rep. 841, it appears that Rebecca Craven and her husband were living together with five sons and their daughter Mrs. Orr and her two children Hobert and Horace, aged thirteen and nine years respectively. The mother and *Page 289 two children were dependent upon the former's parents Mr. and Mrs. Craven.
On January 18, 1918, Mrs. Craven purchased from the Skinner Brothers Realty Company the land involved in this suit which is located in Duval County not within the limits of an incorporated city and contains less than one hundred and sixty acres in a contiguous body. The number of acres which Mrs. Craven agreed to purchase was one hundred and fifty and the price agreed on was $3,750. She paid $1500. in cash and later paid $625. and obtained a deed to seventy-five acres of the original tract. There were no improvements of any kind on the place. During the year 1918 Mrs. Craven fenced the seventy-five acres. At that time she was living on the St. Augustine road at another and different place with her husband and five sons.
A. H. Hartley began boarding there, as he testified, without charge or any agreement as to the amount he should pay for board and lodging. Soon after fencing the place Mrs. Craven began building a house. There was a balance due of $625. to the Skinner Realty Company on the purchase price of the land. Hartley drew his check for $550. in favor of Mrs. Craven and supplemented that amount with seventy-five dollars in cash, so he said. Mrs. Craven took the check and seventy-five dollars to the Skinner Realty Company and made the last payment on the land and secured in her own name a deed to the place dated October 9, 1920. Later during the year 1921 or the early part of 1922, Hartley purchased some lumber which was used in the construction of the house. The bill amounted to $49.92.
In August, 1921, Hartley exhibited his bill of complaint in the Circuit Court for Duval County against Mrs. Craven and her husband and prayed that a lien be declared in his favor to the amount of the money advanced and that the property be sold to satisfy the demand. The Chancellor entered a decree in Hartley's favor on September *Page 290 1, 1927, for the full amount of $674.92 and interest, granting the relief prayed.
There was much conflict in the evidence as to the true character of the transaction and whether at the time Mrs. Craven obtained the check from Hartley for $550. she agreed to execute a mortgage in his favor to secure that sum. There was also much conflict as to whether Hartley advanced $75. in cash and whether at Mrs. Craven's request he purchased lumber to be used in the construction of the house.
As to the alleged promise of Mrs. Craven to give a mortgage to Hartley on the place to secure the payment of the alleged advance to Mrs. Craven, one of Hartley's witnesses, Dr. Frank E. Patten, testified as follows, referring to Mrs. Craven and Mr. Hartley coming to his office:
"They came in to get me to draw a paper. It seemed that Mrs. Craven was about to borrow or had borrowed some money from Mr. Hartley, and Mr. Hartley wanted some paper as security for this loan, and to the best of my recollection Mrs. Craven thought that a note would be sufficient, an ordinary note. I objected to this, stating to Mr. Hartley and Mrs. Craven that a note would not be sufficient security in case one or the other should die, and advised them to have a mortgage and a mortgage note.
"Q. You explained to them that an open note would not be a lien on the property? A. I did; that was the point that I made at that time, that a note would not be sufficient security for Mr. Hartley for a loan of that size."
This conversation occurred after Mrs. Craven had paid the money to the Realty Company and obtained her deed.
An appeal by Mrs. Craven was taken from the decree which was affirmed by this Court. See Craven v. Hartley, supra. A cash deposit was made by Mrs. Craven on taking an appeal which under order of the court operated as a supersedeas bond. While the suit was pending in *Page 291 the Circuit Court T. T. Craven, the husband of Mrs. Craven, died and the cause proceeded against Mrs. Craven to a final decree.
I am of the opinion that no equitable lien existed in the case upon the separate property of Mrs. Craven and before the final decree was entered she became the head of the family and was entitled to the benefits of the homestead exemptions as to the land in any event, which was exempt from forced sale under process of any court. See DeCottes vs. Clarkson, 43 Fla. 1, 29 South. Rep. 442; Hill v. First Nat. Bank, 73 Fla. 1092, 75 South. Rep. 614; Caro v. Caro, 45 Fla. 203, 34 South. Rep. 309.
However just the demand of Hartley may have been the policy of the law is to preserve the home for the family even at the sacrifice of just demands. Hill v. First Nat. Bank,supra.
The decree was not a lien upon the homestead property of Mrs. Craven. Milton v. Milton, 63 Fla. 533, 58 South. Rep. 718.
The provision of the constitution applies not only to formal and technical process but to any judicial proceedings in law or in equity which seek the appropriation of the property to the payment of debts. West Florida Growers Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 South. Rep. 209.
No elements of an equitable lien existed in favor of Hartley. In the first place, Mrs. Craven was a married woman; secondly, the money was loaned to her, if at all, upon her individual credit; thirdly, the property was her separate property; fourthly, her promise to give a mortgage upon the land, if indeed it was made when the money was loaned, was ineffectual without her husband's consent; fifthly, it was not a contract for the purchase of land nor a debt due for the purchase price of it. It was simply money borrowed which she used to pay the balance due on her purchase of the land. The transaction did not come within any of the conditions named in *Page 292 Section 2 of Article XI of the Constitution under which a married woman's separate real property may be charged in equity. Therefore the decree set up another condition not mentioned in the Constitution under which a married woman's property may be subjected in equity to the payment of a debt incurred by her and that on evidence not entirely clear at least so far as the alleged loan of $625. was concerned.
When the decree was affirmed by this court Hartley sought to enforce it and in June, 1928, Mrs. Craven lodged her petition in the Circuit Court entitled in the same case praying that the court would make an order declaring the lands to be her homestead and exempt from the lien of the final decree and that a temporary restraining order be issued restraining the sale of the land and for general relief. The petition was denied and Mrs. Craven took an appeal to this court from the order denying the petition.
I am of the opinion that the petition was merely a step in the original cause. If the property had been sold under the decree and the purchaser had applied for a writ of assistance the petitioner's resistance of it could rest upon her claim of exemption when no intervening equities had occurred because that claim would be under a right which was not adjudicated in the original proceedings. Bunch v. High Springs Bank, 76 Fla. 546, 80 South. Rep 319.
The majority opinion rests upon the doctrine that where one advances money to another for the purchase of land relying upon the other's promise to pledge the land to be acquired as security for the loan an equitable lien arises in favor of the lender upon the land acquired against the borrower. But as a married woman cannot by her act solely pledge the land acquired by her as security for the loan, her husband's consent being necessary to such pledge by way of a mortgage, a lender cannot legally be said to rely upon the promise. He knows *Page 293 that in law the promise cannot be redeemed and the mortgage executed unless the husband consents and there was no assurance of promise that he would emanating from him.
Thus by the use of the doctrine of equitable liens the opinion provides a way for the subjection of a married woman's separate real property in equity to the payment of a debt incurred by her, for which no provision is made in the statute law of the state or the express words of the Constitution.
I think the order should be reversed.