HENRY THALHEIMER AND DAVID KLEIN, PARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF THALHEIMER BROTHERS, APPELLANTS,

v.

PHILIP TISCHLER, FREDA K. ROBINSON AND O. K. ROBINSON, HER HUSBAND, THE J. R. TYSEN COMPANY, A CORPORATION, WILLOUGHBY ADAMS, CHARLES W. RICHARDSON AND CHARLES E. SMITH, PARTNERS UNDER THE FIRM NAME AND STYLE OF ADAMS & RICHARDSON, STEPHEN H. MELTON, HALSTEAD E. BOWDEN, JOHN C. L'ENGLE, THOMAS V. PORTER, THE FLORIDA HARDWARE COMPANY, A CORPORATION, JOHN PRICE, AS SHERIFF AND EX-OFFICIO ADMINISTRATOR OF THE ESTATE OF WILLIAM M. LEDWITH, DECEASED, WILLIAM GREER AND SAMUEL FLYNN, PARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF GREER & FLYNN, R. CLIFTON COOLEY, DEXTER HUNTER, ISAAC BING AND SAMUEL BING, PARTNERS DOING BUSINESS AS I. & S. BING, THE CONNORSVILLE FURNITURE MANUFACTURING COMPANY, A CORPORATION, THE ALABAMA COAL COMPANY, A CORPORATION, RITZA M. PETERS, WELDA SHAW AND ARNOLD M. SHAW, HER HUSBAND, CHARLES KEISWETTER, EDWARD R. ROCKWELL, FORMERLY DOING BUSINESS AS THE FLORIDA STONE & PIPE COMPANY, SAMUEL P. SMITH, THE UNITED STATES NET & TWINE COMPANY, A CORPORATION, THE AMERICAN NET AND TWINE COMPANY, A CORPORATION, AND COLUMBUS SHIPLEY, CHARLES F. BENTLEY AND EDWARD D. HALBERT, PARTNERS DOING BUSINESS AS SHIPLEY, BENTLEY & COMPANY, AND A. T. FRENCH, APPELLEES

Shackleford, C. J.,

(after stating the facts.)

The first point we shall take up for consideration and determination is whether Tischler’s interest in the Henderson lot was legal or equitable in its nature. If we should find that it was an equitable asset,' then it was not subject to sale under an execution and neither the Robinsons nor French acquired any; title by their respective deeds from the sheriff. See Wilson v. Matheson, 17 Fla. 630, text 642; Robinson v. Springfield Co., 21 Fla. 203; Richardson v. Gilbert, 21 Fla. 544, text 546; Zehnbar v. Spillman, 25 Fla. 591, text 598, 6 South. Rep. 214, text 217; Neubert v. Massman, 37 Fla. 91, 19 South. Rep. 625; Mayer Bros. v. Wilkins, 37 Fla. 244, text 255, 19 South. Rep. 632, text 635; Macfarlane v. Dorsey, 49 Fla. 341, text 347, 38 South. Rep. 512, text 514. Should we reach this conclusion it would become futile and unnecessary to determine the question of priority between the Robinsons and French. In fact, such question would not be before us on this appeal. Whatever their respective rights might be, or what claim or interest, if any, they have or might acquire in Tischler’s interest in such lot or in the residue of the proceeds arising from the sale thereof, after the payment therefrom of the sum of $10,278.85, together with interest, attorney’s fees and costs, to the complainants, as fixed by the decree and as to which there is no dispute, would be a matter to be settled by appropriate proceedings in equity.

What interest did Tischler acquire in the lot under and by virtue of the instrument which he and Elizabeth A. Henderson jointly executed on the 25th day of June, j'889, and which we have copied in full in the statement preceding this opinion ? In some of the pleadings, as Avell as in the briefs of counsel, this instrument has been referred to as a lease. Strictly speaking, this term does not fully describe it, and it was used doubtless for the sake of convenience. An examination thereof discloses that by such instrument Tischler leased such lot for the term of twenty-five years from the first day of October, 1889, at the yearly rental of $400.00, to be paid in equal quarterly payments, and also acquired the right and privilege of purchasing the lot at any time, after the expiration of five years from the date of the instrument, upon the payment of the sum of $7,500.60, and all rent which had accrued up to the time of such purchase. Tischler was also to pay all the taxes that might be assessed against the property. It was further stipulated that, at the expiration of the term named, if Tischler failed to purchase the lot, the-value of the buildings and other improvements which he had placed thereon should be fixed by three disinterested parties, one-hálf of which -valuation Elizabeth A. Henderson was to pay Tischler and thereby acquire the title to all the improvements.

The master found Tischler’s interest to be a chattel real and that a lien thereon was created by the issuance of an execution, not by the entry of a judgment. This might be true if the equities did not so commingle with the legal estate as to be inseparable therefrom or if the equities were postponed until the termination of the legal estate for years. The contract will not bear that construction. The execution sale could convey only the certain unexpired term of years which the lease feature of the contract has yet to run;, this however is subject to be defeated af any moment by the exercise of the option, the assertion of the,equity by Tischler or some one in his behalf, thereby destroying that certainty as to terms, so essential to chattels real. This contemporaneous inter-mixture and mingling of legal and equitable interests creates an amalgam that can only be properly disposed of and sold under a decree in equity. As is said in 17 Cyc. 953, “at common law, a leasehold interest in lands, no matter for what term of years, was a chattel, and in the absence of a statute to the-contrary may be levied upon and sold as persbnal property.” Also see authorities there cited, as well as text and authorities cited on page 954. We have no-statute in this state changing the common law rule in this respect, and we have no doubt that if Tischler’s interest in the lot was a leasehold interest only it was subject to sale under an execution. See. section 1618 of the general statutes of 1906. But, as we have seen and as the master properly found, Tischler had not only a leasehold interest in the lot for a term of years but also an option to purchase, at any time after the expiration of five years from the date of the lease, and, in the event he. failed to exercise this option, at the expiration of the term he had a further claim or right to be paid one-half of the valuation of the improvements he had placed on the lot as fixed by three disinterested persons. Did this option to purchase and the right to one-half of the valuation of the improvements give Tischler such. an equitable -interest in the lot, which was so connected with his leasehold interest as to be inseparable therefrom, as to prevent the levy of an execution thereon and its sale thereunder ? It seems to us that this question must be answered in the affirmative. If Tischler had exercised his option to purchase, or if he should do so at any time before the expiration of the term, and Hender son refused to execute a conveyance to the lot upon Tischler’s compliance with all the requirements of the instrument as to the payment of the amount of the purchase money agreed upon and all accrued rent, his remedy would be in a court of equity, not in a court of law. In other words, he has an equitable interest which he could enforce in a court of equity. See the reasoning in Holbrook v. Betton, 5 Fla. 99, which, although not conclusive upon the point in question because not dealing directly with it, tends to that goal. So to the same effect is Insurance Company of North America v. Erickson, 50 Fla. 419, 39 South. Rep. 495, S. C. 2 L. R. A. (N.S.) 512, 111 Amer. St. Rep. 121, 7 Amer. & Eng. Ann. Cas. 495. This being true, neither the Robinsons nor French took anything by -their sheriff’s deeds. Macfarlane v. Dorsey, supra.

The next question we shall consider is were the complainants entitled to a .lien upon Tischler’s interest in the lot for the additional sum of $6,269.80 found to be due from Tischler to the complainants? The answer to this has been foreshadowed by the conclusion which we have already reached and announced in disposing of the other Questions. As we have seen French as a volunteer purchaser at an illegal execution sale took no title to and acquired no equity in the property involved; for like reasons, the Robinsons acquired no title to or interest in such property under and by virtue of their execution sale based upon their deficiency decree. It seems to-us that the complainants have an equitable lien or mortgage upon such property by virtue of the verbal agreement b.ased upon the prior assignment of the lease, combined with an option to purchase, to secure the sum of $6,269.80, found to be due to them from Tischler for money advanced by them to him upon the security of such assignment, and that such equitable lien or mortgage is long prior in point of time to any rights or equities the Rob insons may have by reason of the deficiency decree and is superior to any equity that the Robinsons may have in or to such property.

Therefore, the question propounded must be answered in the affirmative. It follows that the decree must be reversed and that the complainants be decreed to have a first lien upon the property in question not only for the sum of $10,278.85 for principal and interest and $750.00 as a solicitor’s or attorney’s fee, but ,also for the additional sum of $6,269.80 and such additional solicitor’s fee as may be determined by the court from the testimony, and the cause is remanded, with directions for a modification of the decree in accordance with this opinion. The costs of this appeal are to be taxed against the Robinsons and French.

Cockrell and Whitfield, JJ., concur;

Taylor, Hocker and Parkhill, JJ., concur in the opinion.