Raney, C. J.:
This is a suit in equity to subject the statutory real estate of a feme covert to payment for materials furnished for the erection of improvements thereon, and used for such purpose.
Prior to the institution of this suit the appellant had be[142]*142gun and prosecuted, with the result hereinafter indicated, in the Circuit Court of Duval county, an action at law against the appellees on the same cause of action now sued on. The declaration alleged that the materials were furnished by the appellant under a contract made by him with Percival and ratified by Mrs. Percival, and were used in the construction of the building on the lot in question, and that this was the purpose for which they were furnished. That he filed in the office of the Clerk of the Circuit Court of Duval county on February 1, 1884, and within the time prescribed by the statute, a notice of his intention to hold a lien on said building and on the interest of Mrs. Percivalinthe land on which the same stands, for the amount of his claim; that though Mrs. Percival promised to pay said amount, neither she nor her husband had done so. It prays a judgment of the court directing a sale of the property for the satisfaction of the plaintiff’s lien and costs-, and a judgment against the defendants for the amount due. In the declaration there were also counts for money due for work and materials furnished for defendants by plaintiff, and for moneyfound to be due from, defendants to plaintiff' upon ah account stated with the ordinary conclusion as to the amount claimed.
To this declaration and each count thereof Mrs. Percival demurred, among other grounds, because she was, at the time of making the alleged contract, and still continued to be, a married woman, and, in law, incapable of making any valid executory contract enforcible by suit at law ; and because the declaration showed that at the time the alleged contract was made she was a married woman, and the owner of the premises upon which a lien was sought to be created by virtue of said alleged contract.
Percival demurred, among other grounds because in re spect to Mrs. .Percival, the action was a proceeding in rem [143]*143in which no personal judgment might be rendered, and in respect to himself it was a proceeding for a personal judgment, and hence there was a misjoinder of defendants.
Orders were made sustaining the demurrers as to the grounds stated.
The final judgment is as follows: “ Come now the parties by their attorneys in this cause into open court, and the Several demurrers of the defendants touching the liability of defendant, Fannie B. Percival, who is a married woman, having been sustained by the court, and it appearing to the court therefrom that this court is without jurisdiction to entertain the plaintiff’s claim against said Fannie B. Percival, and the demurrer of said defendant that there is a misjoinder of defendants having also been sustained by the court, the plaintiff declining to amend his declaration in this respect, it is therefore considered by the court that the cause of said plaintiff be dismissed out of said court, and the defendants go hence without day, and have and recover of plaintiffs their costs.”
These proceeding at law are set up by Percival in a plea, and by Mrs. Percival in her answer, as a defense to this suit. They were adjudged to be insufficient as a defense by the Circuit Court.
It is clear that the purpose, meaning and effect of the judgment of the Circuit Court in the action at law was to dismiss the action as to Mrs. Percival on the ground that the court, as a court of law, had no jurisdiction to entertain the suit against lier, she being a married woman, and, as to Percival, to dismiss it becanse of an improper joinder of parties. There is as to neither defendant any judgment upon the merits of any claim set up in either count of the •declaration.
It is true that in addition to adjudging that the “ cause ” of the plaintiff be “dismissed out” of the court for the [144]*144reasons indicated by tbe judgment, the words “ and the defendants go hence without day” are added but to give to the latter words the purpose or effect of an adjudication upon the merits of the claim as to either Percival or his wife would be entirely antagonistic to the plain meaning of the judgment considered as a whole, which as to Mrs. Percival is that the court had no jurisdiction of the cause, and as to her husband that the claim was sued upon in a manner not entitling it to be considered upon its merits by the court, and that he had refused to amend his proceedings; and hence a dismissal of his case as to both defendants. Agnew et al vs. McElroy, 10 S &. M., 552; S. C. 48, Am. Dec., 772.
No judgment can be available as an estoppel unless it is judgment on the merits. Freeman on judgments, sec. 260. Judgments of non suit, non pros, of nolle prosequi, of dismissal and of discontinuance are exceptions to the general rule that when the pleadings, the Court and the parties are such as to permit of a trial on the merits, the judgment will be considered as final and conclusive of all matters which could have been so tried. Ibid, sec. 261. Though a judgment on demurrer on the ground that the declaration does not state facts constituting a cause of action may be a judgment on the merits. Ibid, sec. 268. It is clear this is not a judgment upon such ground.
Where the record of the judgment at law set up as a. bar to a suit in equity shows that the court of law did not have jurisdiction of the case, there is no estoppel. Mosby et al. vs. Wall, 23 Miss., 81; S. C., 55; Am. Dec., 71, and Peques vs. Mosby et al., 15 Miss., 340. The dismissal of a bill in equity because the case made by the bill is one cognizable at law does not bar an action at law on the same cause of action, nor does a dismissal at law, because the case [145]*145is one of equitable jurisdiction, bar a subsequent suit in equity.
The proceedings at law are no bar to this suit, and the chancellor did not err in so holding. In O’Neil vs. Percicival et al., 20 Fla., 937 (an appeal from the judgment in the law proceedings referred to) where the principle adjudicated is that the statute of this State relating to mechanics’ liens and authorizing an executory contract to be followed by a personal judgment, does not embrace married women, the court says that it, as a matter of course, does not propose, by anything said, to determine the rights of O’Neil when he shall seek “ a court oí equity as a forum in which to establish an equitable charge.”
In the opinion filed prior to the rehearing, it was held that the ruling of the circuit judge upon the above proceedings at law as a defence to the suit in equity, could not be considered on this . appeal in view of the fact that neither Pereival nor his wife had appealed. Having become satisfied that this was error, we granted a rehearing. So. L. I. & Trust Co. vs Cole, 4 Fla., 359; Fairchild vs. Knight, 18 Fla., 770; Foster vs. Ambler, 24 Fla.; S. C., 5 So. Rep., 263.
The petition for rehearing is based solely upon the omission of this court to consider the defense of res adjudícala, just passed upon, yet as the membership af this court had undergone such a material change since the former opinion was filed we concluded that it would be proper to rehear the entire case, and have done so.
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Raney, C. J.:
This is a suit in equity to subject the statutory real estate of a feme covert to payment for materials furnished for the erection of improvements thereon, and used for such purpose.
Prior to the institution of this suit the appellant had be[142]*142gun and prosecuted, with the result hereinafter indicated, in the Circuit Court of Duval county, an action at law against the appellees on the same cause of action now sued on. The declaration alleged that the materials were furnished by the appellant under a contract made by him with Percival and ratified by Mrs. Percival, and were used in the construction of the building on the lot in question, and that this was the purpose for which they were furnished. That he filed in the office of the Clerk of the Circuit Court of Duval county on February 1, 1884, and within the time prescribed by the statute, a notice of his intention to hold a lien on said building and on the interest of Mrs. Percivalinthe land on which the same stands, for the amount of his claim; that though Mrs. Percival promised to pay said amount, neither she nor her husband had done so. It prays a judgment of the court directing a sale of the property for the satisfaction of the plaintiff’s lien and costs-, and a judgment against the defendants for the amount due. In the declaration there were also counts for money due for work and materials furnished for defendants by plaintiff, and for moneyfound to be due from, defendants to plaintiff' upon ah account stated with the ordinary conclusion as to the amount claimed.
To this declaration and each count thereof Mrs. Percival demurred, among other grounds, because she was, at the time of making the alleged contract, and still continued to be, a married woman, and, in law, incapable of making any valid executory contract enforcible by suit at law ; and because the declaration showed that at the time the alleged contract was made she was a married woman, and the owner of the premises upon which a lien was sought to be created by virtue of said alleged contract.
Percival demurred, among other grounds because in re spect to Mrs. .Percival, the action was a proceeding in rem [143]*143in which no personal judgment might be rendered, and in respect to himself it was a proceeding for a personal judgment, and hence there was a misjoinder of defendants.
Orders were made sustaining the demurrers as to the grounds stated.
The final judgment is as follows: “ Come now the parties by their attorneys in this cause into open court, and the Several demurrers of the defendants touching the liability of defendant, Fannie B. Percival, who is a married woman, having been sustained by the court, and it appearing to the court therefrom that this court is without jurisdiction to entertain the plaintiff’s claim against said Fannie B. Percival, and the demurrer of said defendant that there is a misjoinder of defendants having also been sustained by the court, the plaintiff declining to amend his declaration in this respect, it is therefore considered by the court that the cause of said plaintiff be dismissed out of said court, and the defendants go hence without day, and have and recover of plaintiffs their costs.”
These proceeding at law are set up by Percival in a plea, and by Mrs. Percival in her answer, as a defense to this suit. They were adjudged to be insufficient as a defense by the Circuit Court.
It is clear that the purpose, meaning and effect of the judgment of the Circuit Court in the action at law was to dismiss the action as to Mrs. Percival on the ground that the court, as a court of law, had no jurisdiction to entertain the suit against lier, she being a married woman, and, as to Percival, to dismiss it becanse of an improper joinder of parties. There is as to neither defendant any judgment upon the merits of any claim set up in either count of the •declaration.
It is true that in addition to adjudging that the “ cause ” of the plaintiff be “dismissed out” of the court for the [144]*144reasons indicated by tbe judgment, the words “ and the defendants go hence without day” are added but to give to the latter words the purpose or effect of an adjudication upon the merits of the claim as to either Percival or his wife would be entirely antagonistic to the plain meaning of the judgment considered as a whole, which as to Mrs. Percival is that the court had no jurisdiction of the cause, and as to her husband that the claim was sued upon in a manner not entitling it to be considered upon its merits by the court, and that he had refused to amend his proceedings; and hence a dismissal of his case as to both defendants. Agnew et al vs. McElroy, 10 S &. M., 552; S. C. 48, Am. Dec., 772.
No judgment can be available as an estoppel unless it is judgment on the merits. Freeman on judgments, sec. 260. Judgments of non suit, non pros, of nolle prosequi, of dismissal and of discontinuance are exceptions to the general rule that when the pleadings, the Court and the parties are such as to permit of a trial on the merits, the judgment will be considered as final and conclusive of all matters which could have been so tried. Ibid, sec. 261. Though a judgment on demurrer on the ground that the declaration does not state facts constituting a cause of action may be a judgment on the merits. Ibid, sec. 268. It is clear this is not a judgment upon such ground.
Where the record of the judgment at law set up as a. bar to a suit in equity shows that the court of law did not have jurisdiction of the case, there is no estoppel. Mosby et al. vs. Wall, 23 Miss., 81; S. C., 55; Am. Dec., 71, and Peques vs. Mosby et al., 15 Miss., 340. The dismissal of a bill in equity because the case made by the bill is one cognizable at law does not bar an action at law on the same cause of action, nor does a dismissal at law, because the case [145]*145is one of equitable jurisdiction, bar a subsequent suit in equity.
The proceedings at law are no bar to this suit, and the chancellor did not err in so holding. In O’Neil vs. Percicival et al., 20 Fla., 937 (an appeal from the judgment in the law proceedings referred to) where the principle adjudicated is that the statute of this State relating to mechanics’ liens and authorizing an executory contract to be followed by a personal judgment, does not embrace married women, the court says that it, as a matter of course, does not propose, by anything said, to determine the rights of O’Neil when he shall seek “ a court oí equity as a forum in which to establish an equitable charge.”
In the opinion filed prior to the rehearing, it was held that the ruling of the circuit judge upon the above proceedings at law as a defence to the suit in equity, could not be considered on this . appeal in view of the fact that neither Pereival nor his wife had appealed. Having become satisfied that this was error, we granted a rehearing. So. L. I. & Trust Co. vs Cole, 4 Fla., 359; Fairchild vs. Knight, 18 Fla., 770; Foster vs. Ambler, 24 Fla.; S. C., 5 So. Rep., 263.
The petition for rehearing is based solely upon the omission of this court to consider the defense of res adjudícala, just passed upon, yet as the membership af this court had undergone such a material change since the former opinion was filed we concluded that it would be proper to rehear the entire case, and have done so.
The contention of counsel for appellees that there has been an adjudication, that Pereival was not personally liable for the materials furnished by appellant is overthrown by the conclusion we have announced above, and this removes one of the main premises of his argument.
[146]*146In Schnabel vs. Betts, 23 Fla., 178, we held that the insolvency of a husband is not a necessary condition to the power of the wife to charge her real estate for improvements thereon. The bill before us does not, even if it prop•erly could do so, seek to bind Percival personally for the materials. There’ is nothing in the decisions of this State from which, considering the cases as entireties, it can be inferred that the court considered a personal liability on the part of the husband to be essential to an equitable charge of the wife’s statutory or legal real property, or the rents and profits of the same, for improvements made on such property. His participation in the transaction before us is sufficient to commit him to an application of the rents and profits of the wife’s property to payment for the improvements. Being satisfied with the correctness of the views of the court as expressed in the former opinion by Chief Justice McWhorter as to this branch of the case we adopt, the second and subsequent paragraphs of that opinion in so far as they relate to it, and they will be reported as our opinion in the premises at this point of this opinion.
The bill alleges that complainant is the sole surviving partner of Penniman & Co., carrying on the business, in the county of Duval, of manufacturing lumber.
That in the month of February, 1883, orator agreed with Mrs. Percival, for a certain price agreed on, a part of which was to be paid in advance, to furnish materials for the construction of a house to be erected upon certain real estate owned by her, in the city of Jacksonville, to-wit : upon lot No."5, in .block No. 80, in said city. That the portion of said price agreed on to be paid in advance, having been paid your orator, between the 26th day of February, 1883, and the 15th day of January, 1884, delivered a large quantity of material, which was used in the construe[147]*147tion of the said house, and that said housé now stands completed on said lot.
Your orator further shows that said materials were furnished, and have been used for the improvement of the separate estate of said defendant, Fannie B. Pereival, and in consequence said estate has been greatly improved and increased in value; that said materials were furnished by orator upon the credit of the aforesaid separate estate; that on the 29th day of December, 1883, an accounting was had between orator and Mrs. Pereival for the said materials furnished, at which accounting there was found to be due $550.00, for which Mrs. Pereival gave orator her promissory note, to fall due thirty days after date, of which no part has been paid; that Mrs. Pereival is the owner in fee of said lot number 5, in block No. 80, in said city; that Mrs. Percicval is a married woman, the wife of Alexander X. Pereival, the other defendant in this suit.
The bill prayed a decree for the sale of said lot and building for the satisfaction of complainant’s claim.
The defendant, Fannie B. Pereival, filed an answer to the bill. The answer alleged that she married her co-defendant, A. X. Pereival, on the 4th day of September 1879, and that said A. X. Pereival was, at the time of said intermarriage, and still is, a c'tizen of Florida ; that the east half of said lot was conveyed to her December 14, 1879, by one Jeffreys; that on the 20th of July, 1880, the west half of said lot was conveyed to her by one ELopkius, and that she holds a legal title to said lot. The answer denies that she, or any person for her, contracted with complainant as alleged, or that any of the material for building were furnished to or received by her, but admits upon information and belief that certain material furnished by complainant was used in the construction of a building on said lot.
The answer sets forth verj- fully the nature of the estate [148]*148held by Mrs. Percival in the lot sought to be subjected to the payment of claimant’s claim.
It is her separate property by virtue of the statute of March 6, 1845, McC’s Dig. pp. 754 and 755, and section 26, Art. IY, of the Constitution. It is unnecessary to decide what interest her husband has in such property, or the effect of the constitutional provision upon said statute. The answer shows that it is not an equitable, but a legal estate vested in Mrs. Percival. The next inquiry is, are the facts set forth in the bill sufficient to authorize the court to declare that the claim of complainant is a proper charge against said property ?
Whatever might be the opinion of the court as to the power of the wife to charge her legal estate in any other manner than the one authorized by the statute, if it were an open question, we are of the opinion that it is settled in this State that she can so charge it for any debt incurred by her for the benefit and improvement of said property. Blumer vs. Pollock & Co., 18 Fla., 707; Staley vs. Hamilton, et ux 19 Fla., 275; Harwood vs. Root et ux 20 Fla., 940.
The allegations and proofs show that Mrs. Percival was, at the time of the filing of the bill the owner of -the property sought to be subjected, and that the debt incurred to the complainant was for its improvement, and that such improvement enhanced its value ; that complainant delivered the building materials with the understanding that they were to be used in erecting a building on Mrs. Percival’s lot, on the assurance of her husband, who stated to him that he was out of business, had no means or credit, and that he was acting as agent for his wife, and that the complainant charged the materials delivered, on his books to A. E. Percival, agent of Fannie B. Percival; that he agreed to extend the credit on the understanding that Mrs. Percival’s property washable therefor. She admits that she knew of these [149]*149improvements being built on her property. After the completion of the building she stated to complainant that she generally did in business matters whatever her husband advised, and upon an accounting with complainant gave him her note for $550, the balance due him for the materials used in the construction of the house, the account having at the time been looked over and explained to her by her husband and complainant.
These facts being the case within the operation of the rule laid down by this court in the cases above cited, we are of the opinion that this property should be held responsible for the payment of the complainant’s debt.
Without meaning to admit that the corpus of the estate of a married woman can not be sold for the payment of a debt of this character, we think that in this case the rents and profits of the property should be subjectd to its payment.
The decree is reversed, and the case remanded with instructions to appoint a receiver to take charge of said property and collect the rents thereof until the amount is sufficient to pay the complainant’s claim with interest and all the costs of these proceedings.