Opinion
Opinion filed April 25, 1929.
An Appeal from the Circuit Court for Pinellas County; O. L. Dayton, Judge.
Frank M. Harris, for Appellant;
Adrian M. Shields and H. R. Williams, for Appellee.
This cause having heretofore been submitted to the Court upon the transcript of the record of the decree herein, and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the Court being now advised of its judgment to be given in the premises, it seems to the Court that there is error in the said decree in so far as it allows a solicitor's fee of $215.00.
This was a suit to foreclose a purchase money lien and such lien existed only to the extent of the balance due on the purchase price of the property against which the lien was claimed, together with interest thereon with the court costs incident to enforcing the lien, but did not extend to and make available in behalf of the complainant a provision contained in the note evidencing the indebtedness that the maker under certain conditions should pay a reasonable attorney's fee. This provision in the note was a contract for indemnity. See Brett v. First National Bank of Marianna, and Brooks v. Roberts, both decided at this term of this Court. The payment of this contracted indemnity is not secured by the lien for purchase money here sought to be enforced. It is ordered that the provision in the decree requiring the defendant to pay the sum of $215.00 as solicitor's fee for the services of complainant's solicitors be stricken from the final decree and that the decree be affirmed in other respects.
Inasmuch as the decree appealed from was erroneous in requiring the payment of solicitors' fees and the appellant was entitled to relief from this provision of the decree, the costs incident to the appeal should be taxed against the appellee and it is so ordered.
Affirmed in part and remanded.
WHITFIELD, P. J., AND STRUM, J., concur.
TERRELL, C. J., AND ELLIS AND BROWN, J. J., concur in the opinion and judgment.