Phare and wife purchased property from W. E. Randall and took title by the entireties. The husband and wife executed a mortgage on the property to secure the purchase price. There was default in payments and the vendor mortgagee brought suit against Phare and wife to foreclose the mortgage. The bill of complaint set out other property including a described note and mortgage executed by Mrs. Lindsley, a widow, to Mr. and Mrs. Phare, and prayed that such property be sold to pay a deficiency decree, if any be rendered in foreclosing the purchase money mortgage. A deficiency *Page 464 decree was rendered against the husband alone, and the note and mortgage executed by Mrs. Lindsley, a widow, and held by Mr. and Mrs. Phare as by the entireties but not included in the mortgage, was ordered sold and was sold to pay the deficiency decree rendered in the cause against the husband alone. The note was purchased by Mrs. Lindsley, who was the maker of the note and mortgage so sold, but she was not a party to the suit. An appeal without supersedeas was taken by Mr. and Mrs. Phare from the portion of the foreclosure decree which decreed a sale of property to pay the deficiency decree.
After the note and mortgage had been sold under the deficiency decree and purchased by Mrs. Lindsley, the decree was reversed here, this court holding that the note and mortgage being held by Mr. and Mrs. Phare by the entireties, could not legally be sold to pay the deficiency decree against the husband. Phare v. Randall, 97 Fla. 858, 122 So. 217.
Whatever may be the rights of a stranger to the suit who is a bona fide purchaser at a sale made under a merely erroneous decree which has been reversed, or whatever may be the rights of restitution a defendant may have upon securing a reversal of a merely erroneous decree against him after his property has been sold under the decree; where a decree is illegal or void, a sale thereunder is likewise illegal or void; and a sale under such a void decree carries no title to the purchaser as against the owner defendant in the suit.
The courts ascertain, develop and declare the principles of the common law; and decrees contrary to the common law may be erroneous, and not illegal or void. Where a decree is not merely contrary to some general provision of organic law, but violates an express, specific, absolute prohibitory command of the constitution, relating to the subject *Page 465 matter involved such decree is illegal and void, otherwise the constitution would not be the paramount law, and its absolute commands and prohibitions could be nullified by decrees not challenged by appeal or other correcting procedure.
It is alleged that the sale under the deficiency decree is wholly unlawful and without legal authority.
The decree of the Circuit Court ordering the sale of property held by the entireties, not to satisfy a mortgage lien upon such property duly executed by the husband and wife, but to satisfy a deficiency decree against the husband, is erroneous because it is contrary to the principles of the common law affecting estates by the entireties as declared by this court. If such decree violates organic commands it is illegal.
Section 1, Article XI of the Constitution of Florida provides that:
"All property, real and personal, of a wife, owned by her before marriage, or lawfully acquired afterwards by gift, devise, bequest, descent or purchase, shall be her separate property, and the same shall not be liable for the debts of her husband without her consent given by some instrument in writing executed according to the law respecting conveyances by married women."
If this organic mandate has been violated by the decree here in question, such decree is clearly subordinate to the constitution which makes the decree inoperative.
The comprehensive command that all property owned by a married woman shall be her separate property, covers the property interest of the wife in estates by the entireties; and the positive prohibition that such separate property of the wife shall not be liable for the debts of her husband without her consent duly given, is specific and absolute. If *Page 466 the decree ordering the sale of property held by the entireties to pay the deficiency decree against the husband, which is collaterally attacked in this case, was made without the consent of the wife duly given, it is in direct violation of the quoted specific absolute command of the constitution, which would render the decree illegal and consequently void.
It is alleged that the sale of the property held by the entireties "was wholly unlawful and without legal authority," and that the note and mortgage were "not legally subject to said sale." These are allegations of conclusions without supporting allegations of fact. It is not alleged that such sale was ordered and made without the consent of the married woman duly given. The record in the prior suit is not made a part of the record in this suit. The rights to subject the property to the husband's debt was challenged in the former suit, but such challenge is not alleged here.
It is incumbent upon the complainants to allege facts to show that the mandatory provisions of Section 1, Article XI of the constitution were directly and positively violated by the decree that is collaterally assailed in this case.
As this has not been done, the demurrer to the bill of complaint should have been sustained with leave to amend.
The statement in Anderson, Receiver, v. Trueman, 100 Fla. 727,732, that "an estate by the entireties is of common law origin and is not a part of the separate property of a married woman as referred to in Article XI of the Constitution," had reference to the method of subjecting such property to the debts of the husband. In that case the property was subjected as required by Sec. 1, Art. XI.