Imágenes de páginas
PDF
EPUB

Knapp, who are personally liable for the payment of the debt secured by said mortgage, pay to the complainant the amount of such deficiency, and that the complainant have execution therefor." The bill of complaint is an ordinary bill of foreclosure, and prays, among other things, for an execution against the goods and chattels, lands and tenements, of the defendants for any deficiency. This decree for any balance which may remain due after an application of the proceeds from a sale of the lands is a personal decree against the femes covert, Mrs. Randall and Mrs. Knapp. A married woman cannot bind herself, either in law or equity, so as to authorize a personal judgment against her: Dollner v. Snow, 16 Fla. 86. It is doubtless the case that this part of the decree was a mere oversight upon the part of the chancellor and counsel. Yet it cannot be permitted to stand.

Is not a decree for any such balance premature, anyhow, until it has been ascertained, after the sale? Chancery Rule 89; Scott v. Russ, 21 Fla. 260.

The decree is reversed, and remanded for such further proceedings as may be desired and are in conformity to the principle and practice in equity in such cases.

MARRIED WOMEN. - Personal judgments against married women are erroneous: Note to Caldwell v. Walters, 55 Am. Dec. 599; but the legal effect of a judgment, under a statute, to bind lands of the defendant and subject them to sale, cannot be impeached collaterally by the averment that the defendant was a married woman; and a sale of lands under such a judgment is valid: Callen v. Ellison, 13 Ohio St. 446; 82 Am. Dec. 448.

COVENANT OF WARRANTY - DEFECTIVE TITLE. - A purchaser of land who is in undisturbed possession, and has received a conveyance of the same with warranty, cannot have relief in equity against payment of the purchasemoney on the ground of a defect in the title: Abbott v. Allen, 2 Johns. Ch. 519; 7 Am. Dec. 554, and note 558; compare the case of Long v. Allen, 2 Fla. 403; 50 Am. Dec. 281.

MCCLELLAN v. SOLOMON.

[23 FLORIDA, 437.]

ATTACHMENT. -THE UNDIVIDED INTEREST OF AN HEIR in land under administration is subject to attachment, as such attachment does not dispossess the administrator, nor interrupt the administration.

ESTATES OF DECEDENTS - EQUITABLE LIEN OF HEIRS.-Where an heir is administrator of the estate of his father, his co-heirs have no equitable lien on his interest for the payment of their respective shares, or his indebtedness to them arising from his fraudulent administration of the

estate.

ATTACHMENT-FRAUDULENT CONVEYANCE. An attachment may be levied on the undivided interest of a debtor in land held by a third party under a fraudulent conveyance from him; and the plaintiff, on obtaining judg. ment, may sell such interest, and his purchaser may raise the question of the fraudulent conveyance in an action of ejectment by him to recover his purchase from the party in possession. Judgment Lien DATES as to property previously seized under attachment in the action from the time of the levy of the attachment, which is constructive notice from its date to subsequent purchasers from the attachment defendant; and it makes no difference that the property at the time of the levy was held by a third party under a fraudulent conveyance from such defendant.

JUDGMENT LIEN - PRIORITY. - Where creditors having no lien file a bill to set aside a fraudulent conveyance and obtain a decree, whereupon an undivided interest in the land thus conveyed is sold as the property of the fraudulent grantor, and afterwards the same interest is sold under judgment against such grantor, obtained after the first decree, but in which action an attachment had been levied prior to such decree, the purchaser's title at the judgment sale relates back to the levy of the attachment, and takes precedence of the purchaser's title at the sale under the decree or that of purchasers from him.

FRAUDULENT CONVEYANCE - PROOF. Where one of the parties in ejectment claims title under a judgment sale against a fraudulent grantor, and the other party claims title through a sale under decree against such grantor, the latter decree adjudging the conveyance fraudulent and subjecting the land to sale as the property of such grantor, the introduction in evidence by the latter party of the decree declaring the conveyance a fraud makes further proof of it unneceesary.

John W. Malone, for the appellant.

D. L. McKinnon, for the appellee.

RANEY, J. Action of ejectment by appellee against appellant. Plea of not guilty. The case was submitted to the court without a jury.

The facts in this case, which were agreed on by the parties, are substantially as follows: That appellee is in possession of the lands, the one-fifth interest in which is sued for, containing 240 acres, and that said land constituted a portion of the real estate left by Grissom C. Bird, who died intestate in Jackson County on the 11th of October, 1862. John S. Bird, a son of said Grissom C. Bird, and one of his heirs, was appointed his administrator, and qualified as such on the tenth day of August, 1864; that John S. Bird, on the 2d of December, 1867, upon petition filed in the county court of Jackson County, therein setting forth that a sale of the real estate of Grissom C. Bird, deceased, was necessary in order to pay the debts of said estate, and that said Grissom C. Bird left a considerable personal estate, but that all of it had been

consumed in paying the debts of said estate and the costs of administration, obtained an order from the county judge of said county for leave to sell the real estate of said Grissom C. Bird, deceased, including the lands above mentioned; that said John S. Bird, on the 6th of January, 1868, offered said real estate at public sale, and that it was bid off by D. C. Dawkins, and subsequently deeded by said Dawkins to Mary J. Bird, the wife of John S. Bird; that George W. Jones, on the 5th of January, 1882, instituted a suit in the circuit court of Jackson County against the said John S. Bird individually, and on the same day caused an attachment to issue in said suit, and on the next day said attachment was levied on the one-fifth individual interest of John S. Bird in said lands; that William C. Bird, Ellen M. Bradwell, Martha Reagan, and the administrator of Charles M. Compton, deceased, the said Mary, Ellen, Martha, and Charles being also heirs of Grissom C. Bird, instituted, on the 21st of July, 1882, a suit in chancery in the circuit court of Jackson County against the said John S. Bird as administrator of Grissom C. Bird, and Andrew Scott as administrator of Mary J. Bird, and charged in their bill that the sale of the lands to D. C. Dawkins and Mary J. Bird was fraudulent, that the personal property of Grissom C. Bird, deceased, was more than sufficient to pay all the just debts and liabilities at the time of his death, and that John S. Bird had, by various misrepresentations, endeavored to defraud his co-heirs out of their share of said estate; that the sale of said real estate was not necessary to pay the debts of said estate, and that John S. Bird, in consequence of his maladministration of the estate, was indebted thereto in the sum of $4,077.76, and prayed that the sale of the lands to D. C. Dawkins and to Mary J. Bird be set aside as fraudulent and void; that on the 26th of January, 1883, the chancellor made an interlocutory decree in said cause, declaring the sale of said lands to Dawkins and Mary J. Bird fraudulent, and set the sale aside, and on the twenty-second day of March in the same year made a final decree adjudging and directing that said lands be sold by Frank Philips, master, and that said master pay over the proceeds of said sale equally to the heirs, except the share of John S. Bird, which should not be paid to him until he paid his indebtedness to said estate, and upon his failure to do so for thirty days, then his share to be equally divided among the other heirs; that said master, on the 7th of May, 1883, sold said lands in pursuance of said decree to William C. Bird for $1,000, and divided the proceeds arising therefrom among the

heirs of Grissom C. Bird, except John S. Bird, who failed to pay his indebtedness to said estate, and on the 30th of May, 1883, the chancellor made a decree confirming the sale of said lands; that George W. Jones, on the 14th of November, 1883, obtained a judgment against said John S. Bird in his said suit for $2,367.69, and on the 23d of November, 1883, caused an execution to be issued and levied upon the undivided interest of said John S. Bird in said land; that on April 7, 1884, said undivided interest was sold by the sheriff of said county by virtue of said execution, and was purchased at the sale thereof by the appellant for $150, and a deed thereto was executed to the appellant, bearing date April 7, 1884, and recorded in the records of Jackson County on the 12th of December, 1885; that appellee, on the 16th of March, 1885, purchased the said lands of William C. Bird, and received from him a deed of same date, which was recorded on the 18th of May, 1885; that appellee had notice of the sale of the undivided one-fifth interest of John S. Bird in the lands under the execution of said George W. Jones at the time he purchased the lands from William C. Bird. The appellant received no deed from Andrew Scott as sheriff for said lands under his purchase at the execution sale thereof until after the purchase of the lands by appellee and the recording of the latter's deed; but appellee had notice of appellant's purchase. That George W. Jones was not a party to the suit of William C. Bird and others against John S. Bird and Andrew J. Scott, as administrators respectively of Grissom C. Bird and Mary J. Bird. The court found for the appellee. The appellant moved for a new trial on several grounds, which it is unnecessary to set forth at length. The court denied the motion, and appellant excepted. The errors assigned are: 1. The court erred in overruling the appellant's motion for a new trial; 2. The court erred in rendering a judgment in favor of appellee against appellant.

It

Regarding the question as involved, we can see no reason why such interest should not be levied on by attachment. is true that the levy was subject to be defeated if it should be found necessary to resort to the land to pay the debts of the intestate, but the levy of the attachment on land does not dispossess the administrator: McClellan's Digest, sec. 18, p. 114; nor would it interrupt or interfere with the administration of an estate in any way. Upon authority, however, as well as principle, such an interest is attachable: Proctor v. Newhall, 17 Mass. 81; Lessee of Douglass v. Massie, 16 Ohio, 271; 47 Am. Dec. 375; Freeman on Executions, sec 183

Another question is, Can this lien so created be subordinated to the claim of the co-heirs of the defendant in attachment, who is also the administrator of the estate of their deceased father, arising to them from the fraudulent administration of the estate by such co-heir and administrator? This could be done only on the theory that where one of the heirs to an estate is the administrator thereof, his coheirs have an equitable lien on his interest for the payment of their respective shares. We have been unable to find such a principle. He stands, it is true, in the relation of a trustee to his co-heirs, but no lien arises from this relation on his undivided interest in the estate for any liability or indebtedness to them which he may by mismanagement of his trust incur.

As William C. Bird and the other complainants in the chancery suit instituted for setting aside the fraudulent sale made by the administrator, John S. Bird, had no lien on John S. Bird's individual interest as an heir in the land, their decree setting aside the sale to Dawkins and the conveyance to John S. Bird's wife gave them no priority over any other creditor for satisfaction of their claim out of his interest in the land: Bump on Fraudulent Conveyances, 552; Freeman on Executions, sec. 434; Day v. Washburne, 25 How. 552; Robinson v. Stewart, 10 N. Y. 89; Barton v. Bryant, 2 Ind. 189; McNaughtin v. Lamb, 2 Id. 642. At the time this decree, as well as when the subsequent one in the same cause for the sale of the land and application of the proceeds of John S. Bird's interest to his indebtedness to the complainants therein was made, the attachment in Jones's action had been levied upon the land. It was competent for Jones to do this, and proceed to judgment and sell the land; and after a sale under such judgment for the purchaser at such sale to raise the question of fraud in the sale to Dawkins and conveyance to Mrs. Bird: Bump on Fraudulent Conveyances, 517, 518; Freeman on Judgments, sec. 350; Chatauque Co. Bank v. Risley, 19 N. Y. 369; 75 Am. Dec. 347; Scott v. Purcell, 7 Black f. 66; 39 Am. Dec. 453. The interest was attachable: Proctor v. Newhall, 17 Mass. 81; Lessee of Douglass v. Massie, 16 Ohio, 271; 47 Am. Dec. 375; Freeman on Executions, sec. 183. Upon the assumption that the sale to Dawkins and his conveyance were fraudulent, the lien of Jones's judgment relates back to the date of the levy of the writ of attachment as against John S. Bird, Dawkins, and Mrs. AM. ST. REP., VOL. XI. -25

« AnteriorContinuar »