*1 P.J., Whitfiеld, opin- J., Terrell, concur judgment. ion and
Davis, J., disqualified. Error, v. State Bishop, Florida, Bunt Plaintiff in Error. Defendant 524. Special Division B. 18,
Decision November 1931. rehearing Petition for December 1931. deniеd Murray, Error; J. J. for Plaintiff Gary Landis, Attorney Boy Campbell, General, D. Assistant, for the State. having sub
Per Curiam. This cause heretofore been transcript mitted to Court record herein, argument counsel briefs respective parties, the record inspected, its seen and the Court now advised of given premises, judgment to be it seems to the Court judgment; is, there is no error in the said it thеre fore, adjudged by considered, ordered and Court' judgment of be, the Circuit Court and the same hereby affirmed.
Buford, C.J.,
J.J., concur.
Davis,
and Whitfield
als., Appellants,
Laura M.
McClanahan,
et
vs. Leah M.
al., Appellees.
et
En Banc. Opinion filed November 1931. rehearing Petition for denied December 1931. *2 Appellants; Reese, for B. P. Beall, Appellees. Philip D. for
John M. Coe and filed case, appellant In this Commissioner: Davis, proceeded partition of real estate. The cause bill for ap rights parties, and the adjudication an to April, 1924, 14th pointment on the of commissioners coming in appointed property to the effect to make a division on June division, the court susceptible of a that if was not was, оn property 29th, The that it be sold. August 6, off knocked and sold sale, al reporting the (appellant). The commissioners reported, so publicly announced C. Watson “That at said time judg- and owned to these that he held Commissioners in- (2/7) against undivided two-sevenths
ment lien be Mayne property to in the real of Leah M. terest sold ment lien judg- judg- acquired $222.26, having said amounting by assignment from the purchase Mc- C. Laura suit in this Court ment creditor in the husband, com- McClanahan, her II. E. Clanahan and Defendant, and against Leah M. plainants, subject said sold property said lien proceeded, thereupon said sale stated.” thereupon
Complainant moved the court confirm prior to report, same instrument showed in the had partition suit, institution оf the defendant, Leah against Court, her bill undivided Mayne, for the enforcement interest of labor for material furnished and that Complainant, decree complainant' March, entered in favor of the on the 7th 1928, adjudging (2/7) un- a lien a two-sevenths belong- divided involved interest herein ing Mayne. further shown defendant Leah It was that the lien the said or decree was held assignеd said J. C. himto McClanahan, complainant, complainant, and the Laura C. moved the court to authorize the commissioners to discharge the said lien out' of the interest undivided paid of Leah purchase price prop- *3 erty the, at the sale. of was commissioners’ Notice motion served J. C. Watson. The court the motion denied of to authorizе the commissioners to discharge lien of the out of the Leah undivided interest purchase price paid in property, the con- the firmed the property that the said by purchased complainant subject the to the lien held specific J. C. with to directions they toas how should distribute the fund in their hands. complainant appealed From this decree the this to court. exception No complainant' part which advised court that the had been sold to the lien held by Watson, but as we have seen the court for she moved the сonfirmation of the sale. appear
It pleadings does not from in cause this Laura M. McClanahan was in interested any in right other co-tenant', than as a no attempt pаrt mention made therein of an her on against a lien for enforce labor material the undivided Mayne of interest' in property. Leah J. C. Watson brought party was never a as to this cause. After the rendition decree in suit enforce lien for labor material furnished it would have
603 very easy a complainant' matter for in this cause to have up adjudication amended her hill setting whole undivided share property and asked that it be transferred to the share be allotted to her in the event of property, a division of the or if it should bе sold that the amount thereof be deducted from proceeds her share in the of such sale. Even after transfer of lien, the court doubtless would have party made J. 0. causе, Watson a if to the application had been made therefor. If either course had been taken, the court have could decreed a lien the share paid аllotted to Leah or have had the lien and satisfied "out proceeds her share in of a sale property. provisions 4996, 5000,
Under the of Sections 4997 and Compiled Florida, 1927, Laws (3204, General 3205 S’s.) 3208 Camp R. G. as construed this court Phosphate Co., Anderson, 226, vs. 37 111 722, Fla. So. A. S. Cline, R. Cline vs. Fla. a may chancery, right doubt well arise of a court partition proceeding, after final dеcree and sale property, upon an interest' in which undivided there party exists a valid lienholder was not *4 decree, the suit, to at the of and instance the without the consеnt of both the lienholder and the co-ten- ant held, whom the lien is lien satisfied the be of pro- out of the distributive share such co-tenant property. ceeds of the sale of thе making appealed from, In the decree the court acted separate by com- three and distinct motions made plainant, they instrument, all included one and substantially аs were follows:
(1) report confirm commis- To the of the sale the sioners, (2) pay costs, to direct the etc., (3) pay to authorize the commissioners to and dis- charge the sаid lien out of the undivided interest of Leah
604 property, purchase price the and the direct the commissioners to a cancellation take property. and to еxecute deed to the report (1) approved said The and confirmed the court (2) payment and sale, the the of costs and directed the in their hands to also the distribution оf balance the parties (3) interested, and denied the motion to authorize discharge pay said lien and discharged of lien. execute deed Inasmuch no exceptiоn report as to the the commis of sioners was filed complainant, was made the said lien motion and confirmed of complainant', perfectly it is obvious that if error was сommitted the court in approving sale, it was due acquiescence to the Complainant, or it commit was request ted at her instance is, therefore, not avail able to reverse the 99 Borst, Gale, al., decree. et al. vs. et Fla. 376, 290; 126 So. Lovett, 93 Lovett vs. Fla. 112 768; Thompson So. Kyle, vs. A. Fla. S. R. 193.
However, assignments we understand from the error argument appellant сomplaining that she is not' so sale, much of portion which decree satisfy denied the motion to the lien out distributive of Leah proceeds share sale, and that the Commissioners be directed to execute conveying property discharged deed of the lien.
This appellant' contention untenable. As to whether or entering not the court in final had decree right to have liens, sold free of when C. Watson, the party lienholder not a was cause, has not been settled is, here. The fact that in the instant case nO' made, such оrder was and the commissioners’ re- port they property subject shows that sold to the lien. This confirmed the court decreed that the purchased by subject to such *5 Bnt, any irregularity part lien. if on there was subject making in the lien held a sale objectionable to the J. C. and same was timely protest. complainant, she have made should confirmation, effеct having the “The final order of irregularities, judgment, of a cures final conclusive all making sale, misconduct in the de- and unfairness and sale, partures provisions from the of the deсree if it; and proceedings under in the decree and errors authority jurisdiction the officer the the court had and at- against collateral sell, it valid as makes though irregular and before tack even voidable prevented have confirma- though sufficient to grounds also, J. R. C. L. 85. See C. tion existed.” R. in 1 A. L. 1431. note
Furthermore, been sold purchased a lower lien, it at sold free of price paid if it had been than she would have consequence estopped from she is thereof paid and out of asserting lien should be satisfied that the proceeds of sale. share Finding decree, hereby it is no affirmed. error having been in this Cubiam. The record cause Pee opinion pre foregoing considered Court and adopted, by Chapter pared 14553, Acts under adjudged considered, ordered, opinion, Court as its it is court below that the decree Court hereby be, and the affirmed. should same Bufobd, C.J., Ellis, Tebbell, Bbown Whitfield, Davis, J.J., concur. W. C. Woodward S. J. J. T. Prince, Faircloth, partners doing Union business as former Prince, C. Manufacturing Error, v. Company, Aucilla Plaintiffs Error. Company, River Naval Stores Defendant 886. 137 So. B.
Division Opinion 1931. filed November