Balsley v. Union Cypress Co.

• Decision Date: 22 September 1926
• Citation: 110 So. 263,92 Fla. 706
• Parties: BALSLEY v. UNION CYPRESS CO.
• Court: Florida Supreme Court

110 So. 263

92 Fla. 706

BALSLEY v. UNION CYPRESS CO.

Florida Supreme Court

September 22, 1926

Rehearing Denied Oct. 12, 1926.

En Banc.

Creditor's bill by the Union Cypress Company against P. H. A. Balsley and others to set aside conveyances and subject property to a judgment, and for other relief. From an order overruling demurrers of defendants to the bill, defendant P. H. A Balsley appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Judgment creditor may treat attempted transfer of judgment debtor's property as nullity and sell it under execution legal right of judgment creditor to treat attempted transfer of judgment debtor's property as nullity and sell property under execution does not interfere with right to have equity vacate fraudulent conveyance and remove cloud on title. A judgment creditor has the right to treat an attempted transfer of property to which the judgment debtor had the legal title as a nullity and to sell the property under execution, as though no transfer by connivance, but the existence of such remedy at law does not interfere with the right to resort to a court of equity for the vacation of the fraudulent conveyance as an obstacle in the way of full enforcement of the judgment, and to remove a cloud on the title to the property; fraud being one of the recognized subjects and most ancient foundation for equity jurisdiction.

Judgment creditor must exhaust legal remedies and have return nulla bona on execution before suing in equity to set aside alleged fraudulent conveyance of judgment debtor's equitable title, but not if judgment debtor fraudulently conveyed legal title. Where a judgment creditor seeks by bill in equity to set aside an alleged fraudulent conveyance and subject the property therein attempted to be conveyed to his judgment, if the judgment debtor had only an equitable title to such property it is necessary to exhaust the legal remedies and have a return nulla bona upon execution, before filing such bill in equity, but it is otherwise where the judgment debtor ahd legal title and fraudulently conveyed the same.

Bill by judgment creditor to set aside alleged fraudulent conveyance of judgment debtor need not negative that grantee was creditor of grantor to full value of property. If the grantee in an alleged fraudulent conveyance was a creditor of the debtor grantor to the full value of the property conveyed such fact would be in the nature of a defense to a bill seeking to annul such deed, which it would not be necessary to anticipate and negative in the bill.

COUNSEL

Appeal from Circuit Court, Brevard County; J. J. Dickinson, Judge.

Shepard & Hahl, of Cocoa, for appellant.

Landis, Fish & Hull, of De Land, for appellee.

OPINION

KOONCE Circuit Judge.

Appellee commenced action at law against C. S. Balsley and C. F. Gran, copartners, in the circuit court of Brevard county on November 11, 1921. On the same day, ancillary to such suit, a writ of attachment was obtained and a levy made upon certain real estate appearing on the records in the name of the defendant C. S. Balsley; also on same day a notice of lis pendens was filed in the said court reciting that such suit had been commenced and attachment levied upon the described real estate. The case proceeded to final judgment.

On the 15th day of November, 1921, there was filed and recorded in the office of the clerk of the circuit court for Brevard county two deeds of conveyance to the appellant P. H. A. Balsley, which deeds appear to have been signed by C. S. Balsley and his wife, and which purported to convey the property levied upon under the writ of attachment, and mentioned in the notice of lis pendens and other property; these deeds bear date of November 4th, and appear to have been acknowledged November 10, 1921.

On May 15, 1922, appellee filed in the circuit court of Brevard county its creditor's bill against C. S. Balsley and wife, Helen G. Balsley, and the appellant P. H. A. Balsley, alleging the facts above stated, and further alleging that the deeds were a fraud upon the rights of the complainant; that the defendant C. S. Balsley was insolvent; that the defendant P. H. A. Balsley, who was the father of the defendant C. S. Balsley, took said deeds with full notice of the attachment, and with knowledge of the insolvency of the said C. S. Balsley; that there was no consideration in fact for the said conveyances; and that said deeds were made by collusion of the parties and intended to delay, embarrass, and hinder the creditors of C. S. Balsley in the collection of their claims; that said deeds attempted to convey substantially all of the property of said C. S. Balsley.

The bill prayed for a decree annulling the conveyances, and subjecting the property to the judgment of the complainant, and for other relief.

The bill was amended to show that the defendants had appeared in the action at law.

To the amended bill of complaint the defendants filed demurrers, which, upon being heard, were overruled by the circuit judge. It is from the ruling of the circuit court upon these demurrers this cause is now before this court.

Only three of the eight grounds of demurrer have been presented by this appeal, viz.:

(1) The bill shows affirmatively that the appellee complainant below, had a clear and adequate remedy at law which he has not pursued, but which so far as the bill shows is still available to him, in that he alleges that an attachment was...