Clark v. Mutual Lumber Co., 14254.

• Decision Date: 24 July 1953
• Docket Number: No. 14254.,14254.
• Parties: CLARK v. MUTUAL LUMBER CO., Inc., et al.
• Court: U.S. Court of Appeals — Fifth Circuit

206 F.2d 643 (1953)

CLARK v. MUTUAL LUMBER CO., Inc., et al.

No. 14254.

United States Court of Appeals Fifth Circuit.

July 24, 1953.

David J. Lewis, Jacksonville, Fla., for appellant.

Lloyd Smith, Herbert Lamson and Taylor Jones, Jacksonville, Fla., Rogers, Towers & Bailey, Jacksonville, Fla., Lamson & Smith, Jacksonville, Fla., for Mutual Lumber Co., Inc., appellee.

Before BORAH, RUSSELL, and STRUM, Circuit Judges.

BORAH, Circuit Judge.

This appeal by the trustee in bankruptcy of Riverview Building & Supply, Inc., bankrupt, is from a summary judgment entered on motion of appellee Mutual Lumber Company, Inc., dismissing appellant's complaint against appellee and from an order entered ex proprio motu dismissing the complaint as to the nominal parties R. C. Dix and Ira Mae Dix.

Appellant instituted this action in the United States District Court for the Southern District of Florida to set aside a mortgage and subsequent foreclosure in the Circuit Court of Duval County, Florida, in favor of appellee as a voidable preference under Section 60 of the Bankruptcy Act, 11 U.S.C.A. § 96, as amended Mar. 18, 1950, c. 70, § 1, 64 Stat. 22, and applicable Florida law.

The subject matter of the suit is real estate located in Duval County, Florida. The bankrupt corporation never held the legal or record title to the property. The property, which was unimproved real estate, was purchased in the year 1950 by R. C. Dix and Ira Mae Dix, his wife, and title was conveyed to and remained in them until the termination of the foreclosure proceedings hereinafter described. During the period of their ownership, Dix, who was the president of and a large stockholder in Riverview Building & Supply, Inc., caused a building to be constructed upon the property and same was thereafter used by Riverview Supply as its office, place of business and materials depot. Thereafter, the corporation became involved in financial difficulties and the appellee lumber company, an unsecured creditor of Riverview Supply, began pressing the latter for payment of its debt of $7,709.14. As a result, Dix and his wife on December 9, 1950, executed and delivered to appellee a mortgage upon the property in the amount of the debt payable to appellee corporation as evidenced by their promissory note for said amount. On December 11, 1950, the mortgage was filed for record and recorded in Duval County, Florida, and was specifically made subject to a prior recorded mortgage from Dix and his wife to the Gulf Life Insurance Company.

On January 4, 1951, pursuant to the covenants of the mortgage, a foreclosure suit was filed by appellee in the Circuit Court of Duval County, naming Dix and his wife, Riverview Supply, and its sublessee, New York Terminal Warehouse Company, Inc., as defendants. Service was had upon the defendants in accordance with the laws of the State of Florida and decrees pro confesso were duly and regularly entered against all defendants in the cause. On January 31, 1951, an involuntary petition in bankruptcy was filed against Riverview Supply and on the day following it was adjudicated a bankrupt. There was no attempt by the bankrupt's trustee or other parties to intervene in the state proceeding and on February 21, 1951, the state court entered its final decree¹ of foreclosure adjudicating the validity of the mortgage, the right of Mutual Lumber Company, Inc., to a foreclosure, and the equities between said company and Riverview Supply with respect to the real estate there, and here, involved. On March 5, 1951, the property was purchased at a foreclosure sale by appellee for a valuable consideration subject to the existing mortgage of Gulf Life Insurance Company and on March 6, 1951, the sale was confirmed by the Circuit Court of Duval County.

The complaint alleged that the funds of the bankrupt were used in the purchase of the property and that the building which was thereafter constructed thereon was in the possession of the bankrupt and was paid for in part with the bankrupt's funds. Further, that the mortgage in favor of the appellee company was executed and delivered at a time when the bankrupt was insolvent and that Dix and his wife intended by this transaction to confer a preference upon appellee, an unsecured creditor. The relief prayed was that there be an accounting and that R. C. Dix and Ira Mae Dix be decreed to have held the title to the property as trustees of the bankrupt; that the legal, as well as equitable, title to the property be vested in the appellant trustee with the right of possession and administration and that appellee be adjudged to have received a voidable preference. To this complaint R. C. Dix and Ira Mae Dix filed an answer admitting generally the facts alleged.

Appellee, answering in its own behalf, set up among other defenses that the Circuit Court of Duval County, Florida, a court of competent jurisdiction, had by a final decree adjudicated the legal and equitable rights of the parties, which included all of the parties to this suit or the party under which they claim, and that the final decree of the Circuit Court of Duval County is res adjudicata of the matters involved in this suit. A further defense urged is that appellee accepted the mortgage for value and without notice of any claims of Riverview Supply; that relying upon the record title to the property and upon the mortgage, appellee expended various sums of money in payments to Gulf Life Insurance Company upon its mortgage, in payments of insurance upon the buildings located upon the property, and in payment of costs of foreclosure; and that these payments were made in good faith and without notice of a secret trust arrangement between R. C. Dix and his wife and Riverview Supply. Furthermore, that appellee purchased the property at foreclosure sale for a valuable consideration without notice of the alleged claims of Riverview Supply except that it knew from the public records that said company held the property as a tenant on a month to month basis under an agreement with Dix and his wife, the owners, as this was set out in the recorded sublease agreement² between Riverview Supply and New York Terminal Warehouse Company, Inc. By reason of the foregoing, it is alleged that Riverview Supply and its successors in interest, if any, are estopped as to appellee from asserting any contrary claims to the property.

The appellant moved to strike the foregoing defenses upon the principal grounds, (1) that the complaint seeks to set aside an alleged voidable preference and jurisdiction is specifically vested in the courts of the United States; (2) that the trustee was not a party to the proceedings in the state court, and the question as to whether the transaction was voidable under the Bankruptcy Act was neither raised nor adjudicated in the state court proceedings; (3) that no elements of estoppel are or could be alleged as against the right of the trustee to inquire into the transaction in this suit; and (4) that the averments disclose no equity in favor of appellee as against the appellant and if appellee has made any payments in good faith to preserve the property these payments can be allowed in the bankruptcy court as a charge upon the property. After two full hearings the District Judge denied the motion, following which appellee moved for summary judgment on the ground that the pleadings and the stipulated facts which included the state court proceedings showed that appellee was entitled to a summary judgment as a matter of law. Appellant waived notice and consented to the hearing of the motion, and after due presentation, the court below granted the motion and entered summary judgment in appellee's favor. In view of the fact that the summary judgment made no disposition of the cause as to Dix and his wife and since the pleadings show that they were...