Sheridan, Et Vir v. Respess

On Petition for Rehearing

Whitfield, J.

Each party has filed a petition for rehearing and for a modification of the decree rendered here on appeal from a final decree of the circuit court rendered August 2, 1940.

It is alleged for appellants that after the final de

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cree was made the plaintiffs, appellees here, conveyed all of their right, title, interest and claim in and to the property in controversy without notice to the appellants; therefore the plaintiffs, appellees, can no longer maintain this suit. It is further alleged that appellants, defendants below, were divorced May 13, 1939, before the final decree was rendered and that they have not been again married to each other. It is prayed that the decree here be amended so as to merely reverse the decree appealed from.

For appellees it is alleged that the land has been sold under the decree and later again sold to other parties, and that “This Court has sustained and affirmed the relief granted by the lower court, and has affirmed plaintiffs’ right to a sale of the land for the purchase money thereof, although this Court found the descriptive terminology used by the lower court relative to the reason for the relief granted inaccurate — the conclusion reached by the lower court was but proper and correct, but its reason for the conclusion improperly stated.

“Under such circumstances, it is the long established rule of this court to affirm the conclusion of the lower court disregarding the impropriety of the reason given by the lower court for such conclusion.”

The transcript of the record brought here on the appeal herein does not show that the defendants were divorced before the final decree below was rendered, or that appellees transferred their interest in the property after the date of such final decree, or that the property was sold under the final decree and thereafter sold to a third party.

The bill of complaint alleges appropriate facts upon which it is claimed and prayed that plaintiffs “are en

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titled to assert a lien upon the property . . . and are entitled to have the same charged in equity and sold for the purchase money thereof.”

The decree found the plaintiffs to be entitled “to have an equitable lien on said land,” and decrees that the plaintiffs “are entitled to assert, hold and enforce a lien on the land, . . . and are entitled to have the said land charged in equity and sold for the purchase money thereof.”

The mere facts that the bill of complaint asserts “a lien upon the property,” and that the decree finds the plaintiffs entitled to “an equitable lien on said lands” and adjudges that the complainants are entitled to assert, hold and enforce a lien on the land,” do not affect the validity of the decree or even the substantial correctness of the decree which also adjudges that the plaintiffs “are entitled to have the said land charged in equity and sold for the said purchase money thereof,” which latter portion of the decree accords with Section 2, Article XI, of the State Constitution. The references to “a lien” and to “an equitable lien” in the bill or in the decree may be regarded as harmless surplusage, the record legally warranting the decree as a charging in equity of the separate property of the married woman as authorized by the Constitution.

This Court has many times in effect held that a decree or judgment of the court below, if correct, will be affirmed though based upon reasons inapplicable to the case as made. See Colcord v. Conroy, 40 Fla. 97 , text page 108, 23 So. 561 , and authorities cited.

The essential facts alleged and shown in this case and the pleadings warranted a decree subjecting the property of the married woman in equity under the specific provision of the Constitution for the payment

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of the purchase price thereof. This being so, the decree should be affirmed pursuant to the requirements of Section 4637 (2918) C. G. L.

The decree in this cause rendered here on July 1, 1941, is vacated and the decree of the circuit court rendered August 2, 1940, is affirmed.

Brown, C. J., Buford and Adams, J. J., concurs.