This case is before us on petition for rehearing, which petition we have carefully considered.
In the petition for rehearing it is contended, as it was in the original presentation of the case, that the mortgage sought to be foreclosed was not a mortgage on the separate property of the married woman.
The bill of complaint alleges: "That on November 23, 1935, said defendants Clarence J. Stokes and Caroline E. Stokes in order to secure payment of the above described note, made, executed and delivered to plaintiff their mortgage deed, therein reciting the indebtedness aforesaid and *Page 219 thereby conveying to plaintiff that certain piece, parcel or tract of land of which said defendants were then seized and possessed, and of which they are now in possession, situate in the County of Sarasota and State of Florida, described as follows: Lot 4 of the subdivision of Lots 1, 2, 3, and 26, Block 2, Seminole Heights Subdivision, according to plat thereof of record in Plat Book 2 at page 116-A, Public Records of Sarasota County, Florida.
"Said mortgage deed was recorded on the 23rd day of December, 1935, in the public records of Sarasota County, Florida, in Mortgage Book 73, pages 343-347; a copy thereof is hereto attached as Exhibit 'B' and is hereby made a part of this bill; plaintiff is the owner and holder of said mortgage."
In the bill of complaint the complainant relies upon the lien created by the mortgage and upon that theory the suit has proceeded all the way through.
We have not determined, and do not now determine, whether or not the complainant may proceed to subject the property involved to sale as a married woman's separate property to satisfy complainant's claim, but only hold that the bill of complaint in the instant case is insufficient to warrant the granting of such relief.
Section 2 of Article XI of the Constitution provides:
"Section 2. A married woman's separate real or personal property may be charged in equity and sold, or the uses, rents and profits thereof sequestrated for the purchase money thereof; or for money or thing due upon any agreement made by her 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." *Page 220
This section of the Constitution does not create a lien but only provides that under certain conditions named in the section a married woman's separate property may be charged in equity and sold for the payment of certain obligations named therein.
Petition for rehearing is denied.
TERRELL, C. J., and BUFORD and THOMAS, J. J., concur.
WHITFIELD, J., concurs in opinion and judgment.
Justices BROWN and CHAPMAN not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.