Hume v. Simmons (34 Fla. 584, 1894)

Mabry J.:

Suit was instituted in the Circuit Court by appellee ■on the 12th day of February, 1889, against appellant and A. Herbert Field, and after a demurrer to the declaration interposed by Hume had been overruled, plaintiff filed an amended declaration. Pleas were filed to the amended declaration by Hume and a trial had thereon. The amended declaration alleges that on the first day of January, 1888, Field became indebted to plaintiff in the sum of $231.50 for work and labor done and material furnished on a grove situated on the S. E. quarter of S. W. quarter of Section 21, Township 21, South of Range 30, East, in Orange county, Florida, then owned by Field; that Field failed and refused •to pay the sum mentioned, and plaintiff, on the 19th day of March, 1888, filed his lien upon said land and' grove in the clerk’s office for Orange county, and the same was duly recorded in the book of liens on page 336. Further, that Hume became . the.purchaser of said land and grove after the recording of said lien, and that both he and Field had failed and refused to pay the said sum of money, though often requested so to do, to plaintiff’s damage $400, and he therefore brought suit and prayed'judgment of foreclosure of his lien for the said sum of money, Together with costs and attorney’s fee. A copy of the lien claimed was filed with the declaration, and consists of a written notice to the effect that Simmons intended to claim a lien upon the land described in the declaration for the sum $231.50 for work and labor performed and material furnished upon the orange grove situated on the land. The notice of lien is signed and sworn to before the Clerk of the Circuit Court and recorded by that officer on the 19th day of March, 1888, in book “I” of liens. Hume filed The following pleas to the amended declaration, vis: 1st. That he was not indebted as alleged in .the declaration. 2nd. That plaintiff was not entitled to said lien, or any part thereof. 3rd. That defendant was a purchaser for value and without notice of said lien. Issue was. joined’ on the pleas and a trial had, resulting in a verdict in favor of plaintiff for the sum of $157.13 damages, and the sum of $40.71 attorney fees, . Motions in arrest of judgment and for a new trial were overruled, and, upon the plaintiff entering a remibbituf as to. the attorney, fees, judgment was rendered as follows: “It is ordered that the plaintiff, the said Charles H. Simmons, do have and recover of the defendants, A. Herbert Field and George A. Hume, the sum of one hundred and fifty-seven dollars and thirteen cents as his damages, and the further sum, of four dollars and eighty-six; cents as his .costs ini this¡ behalf expended, said sums to be made out of the-following described lands,, to-wit: , South-east quarter’ of South-west quarter of Section!, Township twenty-one, South of Range 30, East.”

The judgment in this‘ case must be reversed: The object of the suit on the part of the appellee is to enforce a lien on the land described in the declaration for labor ih cultivating and caring-for the orange grove-situated thereon from January 1, 1887, to January!,. 1888: Field owned the land and grove in 1887 and in November1 or -December,11886, made 'a-: contract -withappellee to cultivate and caie fdr the grove during the-year 1887 for the sum of-‘two hundred dollars::; Only-seventy ddllars -of this amount ¡was* -paid. - In ■ March, 1888, appellee filed and had recorded the notice of lien-referred to, and,in July,¡ 1888*!appellant Hume,bought the land from-Field. ■. -In ¡February, 1-889;* íthe, suit ¡was instituted. Field was not served^ with summons--and did' not- appear in¡ the ¡action.' The, theory .-of, ¡appelleeis that he had-a lien on the land' under the act of. 1887 (Chapter. 3747) for his labor performed :on the grove, and