In this case I find myself unable to concur in the opinion prepared by Mr. Justice Terrell; nor am I able to concur in the dissenting opinion prepared by Mr. Justice Ellis.
The question of whether or not an equitable lien on the property involved here existed in favor of Hartley against Mrs. Craven was definitely and finally determined by a Per Curiam Order of Affirmance of this Court in the case of Craven vs. Hartley, 95 Fla. 704, 116 So. 841.
The decree there under consideration was in a suit brought by Hartley to establish an equitable lien in his favor against Rebecca Ann Craven upon the identical property now claimed as the homestead. The decree there affirmed was in part as follows:
"And it further appearing to the Court and the Court finding from the said report of the Special Master that said defendant, Rebecca Ann Craven is indebted to the complainant in the sum of Six Hundred Twenty-five ($625.00) Dollars, together with interest thereon at the rate of six per centum per annum from the 9th day of October, A.D. 1920, for money loaned by said complainant to said defendant to be used and applied on purchase price of said land and which was so used and applied by said defendant and that said complainant is entitled to an equitable lien on said land to secure payment of said sum of money and the interest thereon; and it further appearing to the court and the court finding from said report of the said Special Master that said *Page 294 defendant, Rebecca Ann Craven, is further indebted to said complainant in the sum of Forty Nine Dollars and Ninety Two cents ($49.92) together with interest thereon at the rate of eight per cent per annum from the 1st day of June, A.D. 1922, for lumber furnished by said complainant to construct improvements on the premises described in said bill of complaint, and so used by said defendant and that said complainant is entitled to an equitable lien on the lands described in said bill of complaint to secure the payment of said sum and the interest thereon.
And it further appearing to the Court and the Court further finding from the suggestion of death filed herein by the complainant, that the defendant T. T. Craven died subsequent to the time of taking testimony in this cause and that the defendant Rebecca Ann Craven is now a widow and further that said defendant T. T. Craven had no interest in the subject matter of this suit except as the husband of the defendant, Rebecca Ann Craven."
Then follows the adjudication and decree that the cause proceed against Rebecca Ann Craven and requiring her to pay to Hartley within three days $625.00 with interest thereon at 6% from the 9th day of October, 1920, until date of payment, and the further sum of $49.92 with interest thereon from June 1st, 1922, until date of payment. The decree then decrees that in default of payment the lands therein described shall be sold to satisfy the decree, and other matters not necessary to be considered here. The decree establishes no binding contract between the parties pledging the property to secure the debt.
The appeal is from Order of Court dated July 28th, 1928, denying the petition of Rebecca Ann Craven in which petition set up sufficient facts to show that the lands were exempt from forced sale under the homestead provisions of the Constitution and in which it was prayed that an order be made exempting the lands from sale under the terms of a former decree of the Court which was rendered in the cause without adjudication of petitioner's homestead rights in the premises. *Page 295
Insofar as the existence of equitable liens upon the property as adjudicated in the decree against the property there is now and here no question. That decree became the law of the case as between the parties as to all matters there adjudicated.
In Fidelity Deposit Co. of Maryland vs. Aultman, 61 Fla. 197, 55 So. 273, it was held:
"All the points adjudicated by an appellate court upon a writ of error or an appeal become the law of the case, and are no longer open for discussion or consideration, McKinnon vs. Johnson, 57 Fla. 120, 48 South. Rep. 910, wherein prior decisions of this Court will be found cited, and Purvis vs. Frink, 61 Fla. 712, 54 South. Rep. 62."
See also Hillsborough Grocery Co. v. Lehman, 62 Fla. 208, 56 So. 684; Commercial Bank vs. First National Bank of Gainesville, 80 Fla. 685, 87 So. 315.
So it is that the only question presented here for adjudication is whether or not the liens established by the former decree are such liens as may be enforced against the homestead property. The record shows that T. T. Craven, the husband of Rebecca Ann Craven, died on August 24th, 1923, after the institution of the original suit and prior to the final decree. Prior to the date of the entry of the final decree Rebecca Ann Craven had become the head of a family entitled to the benefits of the homestead exemption under the Constitution and she, with her dependent family, was at the time of the entry of the decree residing upon the lands sought now to be subjected to the lien established by that decree. It will be observed that the decree filed September 1st, 1927, adjudicates "That Rebecca Ann Craven is indebted to the complainant (meaning Hartley) in the sum of Six Hundred and Twenty-five ($625.00) Dollars together with interest thereon at the rate of six per centum per annum from the 9th day of October, A.D. 1920, for money loaned by the said complainant to the said defendant to be used and applied *Page 296 on the purchase price of the said land, and which was so used and applied". This is not equivalent to a decree that Mrs. Craven was indebted to Hartley in the sum of $625.00 as a part of the purchase price of the land within the purview of Sec. 1, Art. X of the Constitution.
In Wilhelm vs. Locklar, et al., 46 Fla. 575, 35 So. 6, this Court, construing the exception in the Constitution rendering a homestead liable for an obligation contracted for the purchase of such property, held:
"A strict construction must, therefore, be given to this exception as we do not feel disposed to extend the terms 'obligations contracted for the purchase of the property' to one who lends money to the vendee, even though the latter uses it in paying a third party who came within the exception, especially when the lender does not rely on the property for security, but takes a simple note therefor and looks to the endorser on such note for payment. We freely admit that courts of the highest respectability hold a different doctrine, though we find none in which the facts are on all fours with this case, yet there are many that hold to the construction of similar constitutional provisions, which we place upon ours, and there is ample justification in following our own decision. Brodie vs. Batchelor, 75 N.C. 51; Calmes v. McCracken, 8 Rich. (S.C.) 87; Gray v. Baird, 4 Lea 212; Loftis v. Loftis, 94 Tenn. 232, 28 S.W. Rep. 1091; Nottes Appeal, 45 Pa. St. 361; Lear v. Heffner, 28 La. Ann. 829."
It will also be observed that the decree does not adjudicate that the $625.00 was for the purchase money of the property or for money or thing of value due upon any agreement made by the owner, a married woman, 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 so as to charge the married woman's separate property in equity with the amount thereof under *Page 297 the provisions of Section 2, Art. XI of the Constitution.
In Milton vs. Milton, 63 Fla. 533, 58 So. 718, it was held:
"Judgments or decrees are liens upon real estate of the defendant in the county where such judgments or decrees are rendered or recorded as required by the statutes. But under section 1, of Article X of the Constitution, no judgment or decree or execution shall be a lien upon homestead exempted property, except for taxes or assessments, or for the purchase price thereof, or for improvements on the exempt real estate, or for house, field, or other labor performed on the exempt property."
And so it is, that insofar as the original decree authorizes the sale of the property to satisfy the indebtedness established by such decree in the sum of $625.00 with interest thereon, it is ineffectual as against the homestead.
The original decree so adjudicates the status of the item of $49.92 and the lien created in connection therewith as to bring it within the exceptions contained in section 1, Article X of the Constitution and, therefore, a lien exists against the property in the sum of $49.92 which may be enforced as against the homestead.
This case is unlike the case of Pasco vs. Harley, 73 Fla. 819, 75 So. 30, in that in the Pasco case the judgment had been obtained and the lien attached prior to the time that Harley became entitled to the benefits of homestead exemption by marrying and becoming the head of a family, and for that reason the property claimed to be exempt to him under the homestead provisions of the Constitution was held to be subject to the lien of the judgment obtained before the property acquired the status of homestead property.
In this case there was no basis for the lien prior to the decree on September 1st, 1927. Section 2, Article XI of the Constitution creates no lien upon a married woman's separate property. Smith vs. Gauby, 43 Fla. 142, 30 So. 683 *Page 298 . It only provides that such property may be charged in equity and sold under certain conditions to satisfy an existing indebtedness. A decree under this provision of the Constitution has the force and effect of a judgment, but it is required that the lien thereof attach to the property specifically charged therewith in the decree.
At and before the time the lands here sought to be exempted were charged in equity by the terms of the final decree with the payment of the sum of $625.00, such lands had become the homestead property of the petitioner and were no more subject to sale under this decree than they would have been under a judgment at law rendered at a like period with like conditions existing.
For the reasons stated, the Order should be reversed and the cause remanded, with directions that the chancellor conduct such further proceedings herein as may be in accordance with law and the rules of practice and not inconsistent with the views herein expressed.