Thrasher v. Doig

18 Fla. 809 | Fla. | 1882

The .Chief-Justice

delivered the opinion of the court.

The bill seeks to charge the specific property described with the price of lumber furnished by Doig & Geiger, and used in the construction of a dwelling-house for Thrasher. They allege that they refused to , furnish the lumber to the contractor, but did furnish it at the instance of Thrasher and upon his express promise to pay for it, or to see that it was paid, and it is alleged that the lot on which the house was erected was in his possession, and that he had purchased it, but they do not know to whom the title was taken. Of this they pray a discovery.

Thrasher does not deny the correctness of the account of lumber furnished and put into the building, but says it was furnished to Carter, who had contracted to erect the house, and denies that he ever promised, before or after it was delivered, to pay for it except as a part of the contract price that might be due to Carter, and that Carter was over-paid when notice of lien was filed by Doig & Geiger. He discloses that the legal title was in himself “ as trustee for his wife and children.” He admits that he contracted with Carter for the erection of7 the house, and says he paid him for it.

The complainants, after the disclosure of the fact that Thrasher held the title as the trustee of his wife and children, without amending his bill so as to charge their interest, proceeded with the cause against Thrasher and obtained a decree against him “ as trustee ” for the amount due them, and that the decree was a specific lien upon the lot, and that it be sold to satisfy the lien.

The first objection to the bill is that it is a bill of discovery, and therefore it was improper to extend the decree or to make a decree of the specific relief granted here. Every bill is in reality a bill of discovery, but the species of bill usually distinguished by that name is a bill for discovery of facts residing in the knowledge of the defendant, or of deeds or writings or other things in his custody or power, and seeking no relief in .consequence of the discovery, though it may pray the stay of proceedings at law till the discovery be made, and is commonly used in aid of the jurisdiction of some other court. Mitford Ch. Pl., 53; 2 Barb. Ch. Pr., 101; 2 Story’s Eq. Jur., §1483.

The bill in this case is not strictly a bill of discovery. Its purpose is to charge property with an indebtedness, and the disclosure it seeks may be legitimate, to the. end sought, as matter of evidence of facts within the, knowledge of the defendant tending to prove the allegations of the bill. “ The discovery and the allegations upon which it is based áre not separate and distinct from the main object of the bill, but have a very obvious relation to it.” Butler vs. Durham, 2 Kelly, Ga., 413, 420.

It is further insisted by appellant that because the statute has prescribed a method of enforcing such liens by an action at law the remedy in equity no longer exists, unless there be some impediment or difficulty in the way of the remedy at law. Ve cannot assent to the proposition that a remedy in equity once existing is taken away by the fact that a'specific remedy at law has been created, unless the latter is expressly declared by the law to be the only remedy. 1 Story’s Eq. Jur., §§33, 64i; 5 C. E. Green, N. J., 79; 20 Grat., 672; 1 Heisk., 30; 3 Lansing, N. Y., 127.

Liens as for purchase-money of land and for improvements thereon are peculiarly the subjects of equity jurisdiction. 1 Story’s Eq. Jur., §506.

The complainants allege in their bill that the land was purchased by Thrasher, and was in his possession, but they were ignorant of the status of the legal title, and they therefore demand a disclosure upon that subject. The answer of Thrasher is the only evidence in the record as to that matter. He discloses that he has the legal title “ as trustee for his wife and children.” The complainants should, at that point, have amended their bill by making the wife and children parties to the suit, because the husband as trustee, without some proper authority from the wife, or on account of the children, has no power to encumber their .property or estate. A married woman may contract for the benefit of her separate estate and thus charge it fin equity, and the intent so to charge it may he-shown by. .parol, and it has sometimes been held that it may be presumed by circumstances. Wells, vs. Thorman, 31 Conn., 318; Withers vs. Sparrow, 66 N. Car., 129; 39 Ind., 201; 103 Mass., 560; 38 Ind., 482; 31 Ind., 92, 106; 20 N. Y., 247; and see authorities cited in 2 Story’s Eq. Jur., 11 Ed., §1400 and notes.

In the case of Administrator and Administratrix of Smith vs. Poythress, 2 Fla., 92, the bill was filed to make the settled, separate estate of Mary E. Cheeseborough liable for the payment of debts contracted by Win. B. Cheese-borough, who was acting agent on said estate for his wife, for supply and improvement on said estate, and which contracts were for the comfort, accommodation and advantage of his wife, and made with her assent and sanction. The debts were contracted for lumber for the erection of a dwelling-house and other buildings on the estate, and for goods for her benefit. The husband had given his notes for these debts. It was held that the judgment creditors of Cheeseborough, the husband, (who had obtained judgments on the notes against the husband, and execution had been returned unsatisfied,) could maintain a bill filed to subject the separate estate of the .wife, which was liable in equity for the payment of these claims. The court holds also also that if the husband had paid such debt he could charge the separate estate of his wife for it. The principle of that case is sustained in N. A. Coal Co. vs. Dyett, 7 Paige, 9; Montgomery vs. Eveleigh, 1 McCord, Chy., 267; Cater vs. Eveleigh, 4 Dess. Eq. R., 19.

In cases of that character we considered the equity rule as settled in this State by the case of Administrators of Smith vs. Poythress.

Where improvements such as houses, &c., have been erected upon' her separate estate or property by her own contract, or that of her authorized agent, equity will charge the estate with the payment of the debt contracted therefor, not because of the statutory lien in favor of mechanics or builders, but because the natural implication is that if a married woman so contracts a debt she intends to pay it, and if she means to pay it, and has a separate estate, that seems to be the natural fund contemplated by both parties as furnishing the means of payment.

The equitable estate of minor children is not liable for any indebtedness growing out of their own contract. They have no capacity to bind themselves except for actual necessaries suitable to their condition, or by hiring for wages, or bj7 some act required by law. (Ib., §240.) They are the wards of a court of chancery. To what extent their estates may be affected by contracts of their guardian or trustee may be considered when their rights are directly involved.

What has been said in relation to the contracts of married women and the status of their property, and the status of infants, shows that in order to affect their estates by legal proceedings they should be made parties and brought before a court of equity by proper process, and that a court of law cannot give the relief prayed.

We refrain, of course, from examining the testimony taken and upon which the decree was founded. The equitable owners of the lot not being before the court, it was premature to charge the property and decree its sale.

The necessary conclusion is that the decree is reversed, and the cause is remanded with directions that the bill may be amended, if the complainants are so advised, within such time as may be fixed by the court, by adding parties and otherwise within the scope and purposes of the suit, and if not so amended the bill be dismissed.