Dova v. Hancock

• Decision Date: 20 December 1924
• Citation: 88 Fla. 503,102 So. 646
• Parties: DOVA et ux. v. HANCOCK.
• Court: Florida Supreme Court

102 So. 646

88 Fla. 503

DOVA et ux. v. HANCOCK.

Florida Supreme Court, Division B.

December 20, 1924

Suit by R. O. Hancock against Angelo Dova and wife, From decree for plaintiff, defendants appeal.

Reversed.

Syllabus by the Court

SYLLABUS

Business transactions presumably honest, and one asserting fraud is required to prove it. Presumably business transactions between individuals are not fraudulent but honest, and he who asserts fraud in a particular transaction is required to prove it, if his contention is to prevail.

Conveyance of property in consideration of marriage, pursuant to antenuptial settlement, is not fraudulent. A conveyance of property for the consideration of marriage, pursuant to an antenuptial settlement, is not fraudulent as to creditors on the ground of want of consideration.

Withholding conveyance from record does not of itself render it fraudulent as to creditors. Withholding a conveyance of property from record, in order to maintain the credit of the grantor, does not of itself render the instrument fraudulent as to his creditors, but may be a badge of fraud to be considered with all the facts attending the transaction, in determining whether or not there was in fact a fraudulent intent in so withholding it from record sufficient to vitiate the conveyance.

Antenuptial settlement, made through fraud of settlor, not annulled without clearest proof of wife's participation. An antenuptial settlement, though made with a fraudulent design by the settlor, should not be annulled without the clearest proof of the wife's participation in the intended fraud.

Evidence held not sufficient to set aside deed as in fraud of creditors. Proof of fraudulent intent in this case, and of extension of credit upon faith of debtor's ownership of property conveyed, held not sufficient basis for a decree setting aside the deed as fraudulent and void.

Appeal from Circuit Court, Escambia County; A. G Campbell, judge.

COUNSEL

J McHenry Jones, of Pensacola, for appellants.

Leroy V. Holsberry and L. V. Trueman, both of Pensacola, for appellee.

OPINION

WEST J.

The object of this suit is to set aside a deed as fraudulent to certain real estate and condemn the property described to levy and sale under an execution issued upon a judgment recovered by complainant against the defendant Angelo Dova. No defense was interposed to the bill of complaint. Decree pro confesso was duly entered. The chancellor, nevertheless required proof of the allegations of the bill and to that end appointed a special master to take evidence in the case. Upon testimony taken and submitted there was a final decree finding that as to complainant's judgment and execution the deed should be annulled.

From the allegations of the bill it appears that complainant was engaged in the wholesale grocery business, and from time to time, during the period from August 31, 1920, to January 18, 1922, sold merchandise to the defendant Angelo Dova, the first item of the account, according to a copy of a statement made a part of the bill, being dated August 31, 1920; that Dova having failed to pay a balance due on the account, complainant instituted suit against him and recovered judgment therefor on June 10, 1922; that execution issued thereon and was returned into court unsatisfied; that Dova acquired title to the lot described by deed to him, dated August 4, 1920, which deed was filed for record on January 19, 1922; that by deed dated January 1, 1921, he conveyed the property to Carmelina Cacace, whom he married on the following day, a copy of which deed is attached to and made a part of the bill; that the defendant Carmelina Cacace Dova withheld her deed from record from the time of its execution, January 1, 1921, to January 19, 1922, during which period the complainant was selling goods to the defendant Angelo Dova and extending credit to him, believing him to be the owner of said property; that 'the said defendants, fraudulently withheld said deed from record and fraudulently represented to the complainant, or his agent, that the said defendant, Angelo Dova, was the owner of the said property, which is worth about $3,000, and that on the strength of such representation a credit, for which said judgment was secured, was extended to the said Angelo Dova, and that, by withholding said deed from record and making said representations to the said complainant, he believed that the said Angelo Dova was responsible for the amount of goods so sold to him, and that, by such representations and by withholding said deed from record, they defrauded the complainant into extending said credit'; that complainant promptly brought suit on the account and recovered judgment against the defendant Angelo Dova on the 10th day of June, 1922, caused execution to be issued and placed in the hands of the sheriff, and has made diligent effort to collect said judgment, but can find no property of said defendant subject to levy and sale under said execution; that the said defendant is now, and was at the time complainant discovered said fraud, insolvent, or has so concealed his property as to prevent the collection of said debt; that the credit for which such judgment was secured would not have been extended had not the complainant 'been deceived by the false and fraudulent representations of the said defendants, and by said Carmelina Dova withholding from the record the deed from the said Angelo Dova'; that as soon as complainant learned of said transaction he ceased to extend credit to said defendant Angelo Dova, and now has no remedy in the premises save and except in a court of equity.

According to the allegations and proof the defendant Angelo Dova owned the property described at the time complainant commenced to sell merchandise to him on August 31, 1920, he having acquired title thereto by deed dated August 4, 1920. This ownership continued until January 1, 1921, when he conveyed the property to Carmelina Cacace, the consideration being, according to the recital of the deed, the marriage of Carmelina Cacace to the grantor. The judgment against him was recovered June 10, 1922. Neither the deed to the defendant Angelo Dova nor the deed which he made to Carmelina Cacace was recorded until January 19, 1922, at which time they were both recorded. The fraud alleged consists in the withholding of the deed from Angelo Dova to Carmelina Cacace from record, and falsely and fraudulently representing to complainant, after this deed was executed, that defendant Angelo Dova was the owner of the property, on the faith of which representation credit was extended by complainant to Dova, which credit would not have been extended had complainant not been deceived by such false and fraudulent representations.

Presumably business transactions between individuals are not fraudulent, but honest, and he who asserts fraud in a particular transaction is required to prove it, if his contention is to prevail. Tischler v. Robinson, 79 Fla. 638, 84 So. 914; Wilson v. Stevens, 129 Ala. 630, 29 So. 678, 87 Am. St. Rep. 86; Gilbert v. Glenny, 75 Iowa, 513, 39 N.W. 818, 1 L. R. A. 479; Conry v. Benedict, 108 Iowa, 664, 76 N.W. 840, 75 Am. St. Rep. 282; Bartlett v. Blake, 37 Me. 124, 58 Am. Dec. 775; Hazell v. Bank of Tipton, 95 Mo. 60, 8 S.W. 173, 6 Am. St. Rep. 22; Hagerman v. Buchanan, 45 N. J. Eq. 292, 17 A. 946, 14 Am. St. Rep. 732.

At the time the deed from Dova was executed he might have made a valid conveyance of the property to any one. The fact that he was, at the date of the conveyance, and from time to time before and after that date, purchasing merchandise from complainant on credit, did not operate to limit or restrict his right to dispose of his property. No such contention is made here. A conveyance of property for a consideration of marriage, pursuant to an antenuptial settlement, is not fraudulent as to creditors on the ground of want of consideration. 27 C.J. 540; Prewit v. Wilson, 103 U.S. 22, 26 L.Ed. 360; Barrow v. Barrow, 21 English Rep. 365; Smith v. Allen, 5 Allen (Mass.) 454, 81 Am. Dec. 758; Huntress v....