On petition for rehearing it is contended that Mary I. Davis' estate was benefited and enriched in the sum of $1,137.50 by plaintiffs below in finding a purchaser ready, willing and able to buy the real estate of Mary I. Davis listed with the plaintiffs, and that this contract, alone, benefited and enriched her estate within the meaning of Section 2, Article XI of the Constitution of Florida. Many authorities from other jurisdictions are cited to support this conclusion.
In the case of Citizens Bank Trust Co. v. Smith, 97 Fla. 601,121 So.2d 900, the Court had before it Section 2 of Article XI of the Constitution of Florida, and designated the items for which the separate personal and real property of a married woman could be charged and sold in equity when this Court said:
"Section 2, Article XI of the Constitution of 1885, in effect provides that a married woman's separate real and personal property may be charged in equity and sold, or the uses, rents and profits thereof may be sequestrated (1) for the purchase money thereof; or (2) for money or thing due upon any agreement made by her in writing for the benefit of her separate property; or (3) for the price of *Page 257 any property purchased by her; or (4) for the value of labor and material used with her knowledge or assent in the construction of buildings, or repairs, or improvements upon her property; or (5) for the value of agricultural or other labor bestowed upon her separate property with her knowledge and consent. The intent of the organic provision is not to authorize married women to contract generally with reference to their separate property, but to define a remedy in equity against the separate real and personal property of a married woman for debts or obligations incurred by her or for the benefit of her separate property in the manner designated in the specifically stated five classes of cases where the organic and statute law of the State has not afforded such a remedy (though courts of equity have given similar remedies), and where mortgage liens to secure such debts or obligations are not given as authorized by organic or statutory provisions. This section provides for five distinct classes of cases in which a married woman's separate property may be charged in equity for debts incurred by her. The language was carefully chosen and a field of operation should be accorded to each of the five designated classes of cases. It is not likely that any particular obligation will fall within more than one of the designated classifications; so that the remedy will ordinarily operate upon each as coming within one and only one of the enumerated classes of cases. If a case more properly comes within one of the specified classes of cases, the remedy that is appropriate to that class only should be invoked."
The record discloses that prior to February 28, 1936, Mrs. Davis owned certain described lands in her own name located in Dade County, Florida, and listed the same for sale with Battle Hicks, real estate brokers, whereby she authorized its sale for the sum of $56,062.50 to be paid *Page 258 over a period of three years, and under the terms of dealings with the real estate brokers, she was to pay a brokerage fee when a purchaser, ready, able and willing to buy was obtained. The purchaser was obtained and deposited the sum of $5600.00 with the real estate brokers as a binder. She felt that she could obtain a better price for her property than the sum of $56,062.00 and accordingly cancelled her contract or agreement with Battle Hicks for the sale of the property and directed that the sum of $5,600.00 left by the proposed purchaser as a binder be by Battle Hicks returned to J. Paul Baker, Jr., the original owner. The contract to purchase as obtained by Battle Hicks for appellant's property did not increase the value of her real estate, neither did it improve the same, and the alleged benefit and enrichment flowing from said contract, supra, if any, is not such an enrichment or benefit as falls within Section 2 of Article XI of the Constitution of Florida.
The original opinion, upon reargument by counsel, is reaffirmed and adhered to.
WHITFIELD and TERRELL, J.J., concur.
BROWN and BUFORD, J.J., dissent.