The contract set forth in the bill was not an absolute sale, but an agreement to sell if certain conditions were complied with, such as the making of certain payments, etc., and was in effect a conditional sale. The seller agreed to make a bill of sale to the buyer upon the completion of certain payments therein described, and, if the buyer defaulted in any payment, the contract should, at the option of the seller, be forfeited and terminated *Page 742 and all payments made by the buyer should be forfeited to the seller and retained by it in full satisfaction and liquidation of all damages by it sustained, and the seller should have the right to repossess the property. There was no attempt to reserve a lien of any sort, if such were in fact possible under the circumstances. The buyer defaulted in his payments and the title never passed out of the seller.
This left the seller two remedies, and only two, and both purely legal. It could treat the sale as absolute and sue the buyer for the balance due on the debt, or it could treat the contract as forfeited and canceled, and recover the property by replevin. But the seller could not pursue both courses. To pursue either remedy would operate as an abandonment or waiver of the other, the remedies being inconsistent. It could never be the intention of the law to permit the seller to take back the property and at the same time force the buyer to pay for it, or at least the balance due. The seller cannot collect the price and keep the property, too. There is an excellent statement of the law on this subject in the able opinion of MR. JUSTICE WHITFIELD in the case of American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116; see also 24 R. C. L. 482, and Mizell Live Stock Co. v. McCaskill, 59 Fla. 322,51 So. 547; Campbell Printing Press Co. v. Walker, 22 Fla. 412.
Instead of pursuing either of these remedies, the receiver of the seller, the Bank, went into a court of equity, and "elected to claim a lien" upon the property, had the property sold to satisfy the lien, bought it in for one-third of what it had been originally sold for, and obtained a deficiency decree against the buyer for nearly $10,000.00 Thus the buyer lost the property and the $2000.00 already paid by him, and was burdened with a money decree for nearly $10,000.00, although his contract contemplated that if possession *Page 743 of the property was taken from him, the money already paid by him should be retained in full satisfaction of the debt.
This action concerned personal property. There is no vendor's lien for unpaid purchase money on personal property, such as there is on real estate. 29 Am. Eng. Encyc. of Law, 733; 35 Cyc. 653; McKinnon v. Johnson, 54 Fla. 538, 45 So. 451. If the seller of personal property desires a lien, he should take a chattel mortgage; if he sells on conditional sale contract, retaining the title, he can have no lien, for he can have no lien upon his own property — the lien would be merged in the title.
This is not a case where there is any claim that the arrangement between the parties was such as that equity would impose the qualities of a mortgage upon the transaction; nor would the facts set forth in the bill justify any such.
Of course, a vendor's lien implied by law for unpaid purchase money on real estate which the vendor has conveyed may be foreclosed in equity. And this doctrine has been extended to cases where the vendor of lands has retained the legal title, for in such cases the vendee is treated as the real beneficial owner and the vendor is deemed to hold the legal title as trustee, and as security for the payment of the purchase money. He has a lien upon the vendee's equitable estate as security for the payment of the purchase money, which he may foreclose in equity, the vendee being decreed to pay the amount due on the price within a limited time, or in default of such payment his equitable estate will be foreclosed and sold to pay the purchase price.
But this doctrine is not applicable to personal property. Where personal property is sold, the general rule has long obtained that there is no lien implied by law, or in equity, to secure the payment of the purchase money. The seller *Page 744 may obtain a lien, if desired, by taking a chattel mortgage, or he can retain the title until the price is paid, and if possession is delivered to the buyer, he can protect himself by evidencing such conditional sale by written contract.
I am therefore inclined to the opinion that the facts set up in the bill, in spite of the allegations claiming a lien, showed that the complainant had no lien of any sort whatsoever, either at law or in equity; that his only remedies were purely legal remedies, and that his allegation of a lien was palpably nothing but a bald and unsupported conclusion of the pleader.
I am aware that these views are in apparent conflict with the case of Varn et al. v. Ashbrook, 84 Fla. 626, 94 So. 384, but a careful reading of that case shows that the decision was based upon the premise that the so-called conditional sale was on the facts shown, in reality a mortgage, and such being the case, the seller could so treat it, and proceed for foreclosure. What the facts were, which showed the transaction to be a mortgage, are not set out. This case is not to be construed as holding that in any case, a seller (and certainly not the receiver of the seller) in a conditional sale contract may on default arbitrarily elect to treat such contract as a mortgage and bring suit in equity to foreclose the mortgage lien. If this option were accorded to the seller, it would also have to be accorded to the buyer. To so hold, would indeed be an innovation.
It is true that there seems to have been a recent tendency on the part of some of the appellate courts in other jurisdictions to extend the principles governing conditional sales of land or executory contracts for the sale of land, and the relations between the vendor and the vendee in such transactions, to similar contracts with regard to personal property. There may be good reasons for this, founded in natural equity and justice, but it would appear that this radical change in the law of personal property could not be *Page 745 effected without statutory enactment; especially so in those jurisdictions, in which, like in this State, the common law principles obtain except in so far as they are modified or abrogated by statute.
Jurisdiction of the subject matter means not simply jurisdiction of the particular case before the court, but jurisdiction of the class of cases to which the particular case belongs; and, of course, jurisdiction of the subject matter can neither be conferred upon the court by consent of the parties, nor want of it waived by either party.
It is, as the writer views it, clearly apparent from the facts set up in the bill that this case was entirely outside of equity jurisdiction and beyond equitable cognizance. It is true the complainant stated in his bill that he elected to and did claim a lien upon the furniture, but the contract set forth therein and the other facts alleged showed, beyond any controversy, that neither the complainant receiver, or the Bank of which he was receiver and which was one of the original parties to the contract, had any right or power whatever to make such an election or to claim such a lien. The subject matter set up in the bill negatived said allegation and showed plainly that no lien of any sort existed or could be claimed. Surely the bald assertion of the claim of a lien clearly negatived by the facts set up, could not possibly create and confer jurisdiction upon the equity court. The ipse dixit of the pleader possesses no such power. I do not differ so much with most of the principles of law so well stated in the able opinion of MR. JUSTICE WHITFIELD, as I differ with their application of the facts here involved; though some of the cases cited and propositions advanced therein do, to my mind, show a departure from time-honored fundamental principles. Of course, if the court had been guilty of mere error, or an erroneous exercise of a jurisdiction which existed, a motion to set aside the decree would have been properly denied. *Page 746 But the court attempted to exercise a jurisdiction which never existed and its decree was therefore absolutely null and void, and should have been vacated on the motion made. There is an important distinction between the erroneous exercise of an existing jurisdiction of the subject matter, and erroneous assumption of a jurisdiction which does not exist or an erroneous usurpation of a jurisdiction which is exclusively lodged in some other forum or tribunal. The former is merely reversible on appeal; the latter, when it clearly appears, renders the judgment or decree null and void, and subject to be set aside on motion for that purpose by a party to the suit, who has been aggrieved thereby, unless he is for some recognized reason estopped from raising the question. 17 Am. Eng. Encyc. Law, 2nd Ed., pp. 1041-6, et seq.; 7 R. C. L. 1039, 1043, 15 C. J. 729, 734, 852; Brown on Jurisdiction, 2nd Ed., sections 2, 2a, 3, 10, 26, 26c; and cases cited.
*Page 747"But whatever may be the object of the bill, the first and fundamental rule which is always indispensable to be observed, is, that it must state a case within the appropriate jurisdiction of a court of equity. If it fails in this respect, the error is fatal in every stage of the cause, and can never be cured by any waiver or course of proceeding by the parties; for consent cannot confer a jurisdiction not vested by law (See Section 472 and note a). And, although many errors and irregularities may be waived by the parties or be cured, by not being objected to, the court itself cannot act except upon its own intrinsic authority in matters of jurisdiction; and every excess will amount to a usurpation, which will make its decretal orders a nullity, or infect them with a ruinous infirmity." Story's Equity pleadings (10th Ed.) Sec. 10, p. 9.
"In the judgment of the writer, the petition or declaration to support a valid judgment, even against a collateral attack, must be sufficient to withstand and support a judgment, had the defendant appeared and gone to trial without objection to the pleading, and then, after verdict, filed a motion in arrest." Brown on Jurisdiction, 2nd Ed., section 2a. "Consent cannot confer jurisdiction of subject-matter, jurisdiction of subject matter is the power to adjudge concerning the general question involved, and is not dependent upon the ultimate existence of a good cause of action in the plaintiff in the particular case before the court. It is the power to act and adjudicate concerning such general abstract question, so to speak, and determine and adjudge whether the facts presented call for the exercise of the powers conferred upon the court. This power must be determined by facts averred, and the relief asked, and while, as we have said, the petition need not in ordinary law or equity actions set forth, in either form or substance, a good cause of action, we think it must do so inferentially, so that the court may be called upon to exercise its powers in a legal manner. A judgment rendered by a court or tribunal having no power or authority to render the judgment, or determine the matter in issue, is absolutely null and void, and cannot be ratified by the legislature of the state, and may be attacked collaterally. If a court or tribunal pronounces a judgment it has no authority to grant, or one outside of the issues made and before the court for determination, then such judgment in excess of the power conferred is void as to such excess of its powers. We are now speaking of common law actions, and ordinary equity actions, in contradistinction to actions where special powers are conferred upon the court, not in accordance with the principles of the common law, or where statutory power is conferred, which we shall herein consider later in this *Page 748 work." Brown on Jurisdiction, 2nd Ed., section 3. It is said by the court in Cooper v. Reynolds, 10 Wall. 308; "By jurisdiction over the subject-matter is meant the nature of the cause of action or relief sought, and this is conferred by the sovereign authority which organizes the court, and is sought for in the general nature of its powers, or in authority specially conferred." In Hope v. Blair, 105 Mo. 85, 24 Am. St. 366, it is said: 'Jurisdiction may be defined to be the right to adjudicate concerning the subject matter in a given case. To constitute this there are three essentials: 1. The court must have cognizance of the class of cases to which the one adjudged belongs; 2. The proper parties must be present, and 3, the point decided must be in substance and effect within the issue.' Sec. 26, n. 1 and 3." Brown on Jurisdiction, section 3, note 3. See also Hayes v. McGee, 17 Fla. 158, 161; Finnegan v. Fernandina, 15 Fla. 379; Metcalf Co. v. Martin, 54 Fla. 531,45 So. 463; Simmons v. Williford, 60 Fla. 359, 53 So. 452; Johnson v. McKinnon, 54 Fla. 221, 45 So. 23; Edmonds v. Gracy, 61 Fla. 593, 54 So. 899; Smith v. Powell, 80 Fla. 166, 85 So. 654; Tampa Gulf Coast R. Co. v. Mulhern, 73 Fla. 146, 74 So. 297.
It necessarily follows that the decree of the court giving a deficiency judgment against the defendant for a large amount and an attorney's fee of $1000.00 was also void, because rendered in a cause of which the court had no jurisdiction. But if this conditional sale had involved real estate, thus giving the court jurisdiction for the foreclosure of the vendor'slien, it is very doubtful that the court would have been justified in rendering a deficiency decree. It is quite plain from the language of the contract that it was the purpose of the same to provide that in case of default and *Page 749 repossession of the property by the seller, the retention by him of the money already paid on the contract would be considered as liquidated damages and full satisfaction of all demands against the buyer. In other words, if he repossessed the property the seller was to look to the property rather than to the buyer personally for the balance due. With this provision in the contract, a court of equity would hardly see its way clear to the rendition of a deficiency decree, after taking possession of the property from the buyer and selling it for the benefit of the seller, and the seller having retained all payments made. See Johnson v. McKinnon, 45 Fla. 388,34 So. 272; McKinnon v. Johnson, 54 Fla. 538, 45 So. 451; and 3 Jones on Mortgages, section 1711. Chapter 7839 of the Acts of 1919 could hardly be construed to compel a court of equity to render a deficiency decree in all cases of lien foreclosure, regardless of the terms of the contract or the justice and equity of the case. It is true that act provides that if the proceeds of the sale shall not be sufficient to pay the debt and costs, a deficiency decree may be rendered for the balance. But that would not apply in a case where the taking of the property and the retention of the payments already made operated under the terms of the contract to cancel the debt. Furthermore, where, as in this case, there was no equitable jurisdiction to support the main case, the court could not go further and render a valid money decree without coming into conflict with the principle laid down in McMillan v. Wiley,45 Fla. 487, 33 So. 993. There can be little doubt that the action of the court in this case amounted to an attempt to administer common law remedies in a court of equity and deprive the defendant of the right of trial by jury according to the court of the common law which was secured to him by the constitution. I cannot, therefore, but reach the conclusion that the order of the court below should be reversed *Page 750 and the cause remanded with directions to enter an order granting the motion and vacating the former decree.
En Banc. On petition for rehearing.