Opinion
January 29, 1952.
C.B. Peeler, Jacksonville, for petitioners.
David L. Black and Frederick B. Karl, Daytona Beach, for respondents.
We here review on certiorari two orders entered in partition proceedings instituted by the petitioners against Nathan Archie Dedge and Nora Dedge, his wife, and R.T. Duffield. The petitioners, together with Nathan Archie Dedge and his wife, are the sole heirs at law of the estates sought to be partitioned. In addition to the relief sought by partition, however, the petitioners alleged that prior to the institution of the partition proceedings they had obtained a judgment at law against the respondent, Nathan Archie Dedge, and prayed that as coincidental relief to a final decree of partition, whatever interest in said estates that might accrue to the heir, Nathan Archie Dedge, be charged with the lien of the said judgment of the petitioners. Upon motion of the respondent, Nathan Archie Dedge, the Chancellor struck from the bill those portions thereof relating to the judgment lien. It is this order which we first consider.
The court held, in Moore v. Price, 98 Fla. 276, 123 So. 768, that the heirs of a deceased husband were entitled in a single suit to have dower in homestead assigned to the widow and to compel partition among themselves of the remaining property. And in Miles v. Miles, 117 Fla. 884, 158 So. 520, a defendant in partition proceedings was allowed to foreclose a mortgage on part of the land involved and as a part of the partition proceedings. Similarly, we see no reason why an equity court, in the exercise of its power to grant complete relief, should not then and there settle the matter of the petitioners' judgment lien against the respondent Nathan Archie Dedge, which would, of course, attach to his portion of the property immediately upon its being apportioned to him, so that in the event it is found that the property must be sold under the decree of the court, the purchaser thereof may obtain title free and clear from such judgment lien.
Accordingly, the order striking from petitioners' bill that portion relating to the judgment lien was error.
The petitioners also made a party defendant one R.T. Duffield so that "whatever right, title, interest and estate he has under the premises may be determined, adjudicated and disposed of in these proceedings." Duffield filed his answer, and also a counterclaim, alleging that he had been placed upon said land by Nathan Archie Dedge, as the administrator of the estates here in question, with the advice and consent of the petitioners, and that he had performed services upon said land for which he had never been compensated and which, in equity and good conscience, should be a first lien upon said land. The petitioners' motion to dismiss Duffield's counterclaim was denied by the Chancellor.
This was error, because the allegations of the counterclaim are insufficient to show a cause cognizable in a court of equity.
The writ of certiorari is awarded and the order striking from petitioners' bill that portion relating to the judgment lien is quashed, and the order denying petitioners' motion to dismiss Duffield's counterclaim is quashed.
SEBRING, C.J., and CHAPMAN, ROBERTS and MATHEWS, JJ., concur.