Foster v. Thornton

• Decision Date: 23 October 1936
• Citation: 125 Fla. 829,170 So. 598
• Parties: FOSTER et ux. v. THORNTON.
• Court: Florida Supreme Court

170 So. 598

125 Fla. 829

FOSTER et ux. v. THORNTON.

Florida Supreme Court, Division B.

October 23, 1936

Rehearing Denied Nov. 18, 1936.

Action by L. Elmer Thornton against G. E. Foster and Lillian M Foster. From an adverse order, the defendants appeal.

Affirmed.

See also, 113 Fla. 600, 152 So. 667; 119 Fla. 49, 160 So. 490; 170 So. 459. Appeal from Circuit Court, Duval County; Bayard B. Shields, judge.

COUNSEL

Montague Rosenberg, of Jacksonville, for appellants.

Stockton Ulmer & Murchison, of Jacksonville, for appellee.

OPINION

BUFORD Justice.

The appeal in this case is from four certain interlocutory orders, to wit:

'An order made and entered on the 30th day of November in and by which said Circuit Judge did deny the motion to Dismiss of the said defendants directed to the bill of complaint herein heretofore filed; an order made and entered on the 29th day of November A. D. 1935, in and by which said Circuit Judge did overrule said defendant's objections to interrogatories and require said defendants to answer interrogatories; an order made and entered on the 18th day of December A. D. 1935 in and by which said Circuit Judge did deny the motion of the defendants to transfer this cause to the law side of the court and in and by which said order the court denied the motion of the defendants to stay the further progress of said cause; and an order made and entered on the 18th day of December A. D. 1935 in and by which the said Circuit Judge did grant supersedeas and require a prohibitive bond in the sum of $11,007.88, in that certain cause pending in said court wherein L. Elmer Thornton was and is plaintiff and C. E. Foster and Lillian M. Foster, his wife, were and are defendants.'

The appellant states that there are two questions involved.

The first is:

'Can a tort judgment holder, pending an appeal, attack conveyances recorded for nearly three years before rendition of judgment, by a bill of complaint which fails to allege: positive and direct allegations of fraud: sheriff's return nulla bona: nor that grantor was insolvent or in failing or embarrassed circumstances: nor that grantor had disposed of all of his property, nor that grantor had no remaining assets after said conveyances?'

The second question is:

'Can a chancellor destroy an appeal by proceeding further in the cause below, pending an appeal, and effectually denying supersedeas by fixing prohibitive bond where nominal or no bond ought be required?'

The chancellor answered both questions in the affirmative.

We think that it is not needful for us to devote any time to disposition of the second question. If any injustice was done the appellant by the order of the chancellor fixing the supersedeas bond in the sum of $11,007.88, it was cured by this court granting a stay order on the application here pending the appeal.

The first question as presented may be answered by reference to section 3864, R.G.S., section 5771, C.G.L., which is in part as follows: 'Every feoffment, gift, grant, alienation, bargain, sale, conveyance, transfer and assignment of lands, tenements, hereditaments, and of goods and chattels, or any of them, or any lease, rent, use, common or other profit, benefit or charge whatever out of lands, tenements, hereditaments or goods and chattels, or any of them, by writing or otherwise, and every bond, note, contract, suit, judgment and execution which shall at any time hereafter be had, made or executed, contrived or devised of fraud, covin, collusion or guile, to the end, purpose or intent to delay, hinder or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, demands, penalties or forfeitures, shall be from henceforth as against the person or persons, or bodies politic or corporate, his, her or their successors, executors, administrators and assigns, and every one of them so intended to be delayed, hindered or defrauded, deemed, held, adjudged and taken to be utterly void, frustrate and of none effect, any pretense, color, feigned consideration, expressing of use or any other matter or thing to the contrary notwithstanding,' together with section 3229, R.G.S., section 5035, C.G.L., as the same have been construed by this court.

The pertinent allegations of the bill of complaint are in effect that the plaintiff being a tort claimant against the defendant C. E. Foster because of the injury caused by the defendant to the wife of the plaintiff which injury occurred on January 22, 1932, and, being such claimant, had instituted a suit against the defendant, the declaration being filed on June 23, 1932, and that thereafter on January 30, 1933, just a few days before the case came on for trial, the defendant conveyed all his real property to his wife, Lillian M. Foster; that the trial resulted in a judgment in favor of the plaintiff against the defendant. To that judgment writ of error was taken to the Supreme Court. The judgment was reversed, and the cause remanded for new trial. On June 3, 1935, the cause again came on for trial and on the 6th day of June, 1935, a verdict was rendered for the plaintiff. It is alleged that the judgment is outstanding and in full force and effect and has not been set aside, superseded, or amended. At the time of the institution of this suit C. E. Foster was the owner of and in possession of certain described real estate in Duval county, Fla., and that while the claim which was the basis of the cause of action was in existence and unpaid and while the suit was being prosecuted, the conveyance was made by C. E. Foster to his wife, Lillian M. Foster, of certain deeds purporting to convey such property from C. E. Foster to Lillian M. Foster. Certified copies of the deeds are attached to and made a part of the bill of complaint.

It is then alleged:

'That said defendant Lillian M. Foster is and was at the time of the above attempted conveyance the wife of said defendant C. E. Foster, and plaintiff is informed and believes and upon such information and belief alleges the fact to be that said deeds, and each of them, were given to said defendant Lillian M. Foster, without anything of value and without any valuable consideration moving to said C. E. Foster, and that said attempted conveyances were, in fact, gratuitous and voluntary; that each of said attempted conveyances, respectively, was made, executed and contrived of fraud, covin, collusion and guile, and to the end, purpose and intent to delay, hinder, embarrass and defraud plaintiff of his just and lawful claim against the defendant C. E. Foster.

'IV. That the defendant C. E. Foster did not have at the time of the aforesaid conveyances, nor has he since had, other property sufficient to satisfy plaintiff's judgment; that said judgment is a lien on the above described lands attempted to be fraudulently conveyed by said C. E. Foster, as above set forth, but that said deeds above described constitute clouds on and obstructions to the full and fair enforcement of plaintiff's judgment lien, which clouds and obstructions plaintiff is entitled to have removed.

'V. That the plaintiff is informed and believes, and upon such information and belief alleges the fact to be that notwithstanding said purported conveyances by the defendant C. E. Foster, to the defendant Lillian M Foster, his wife, said defendant C. E. Foster has retained dominion and control over said properties and is managing the same and collecting the rents therefrom; that many of the above described pieces of property have improvements thereon; that much of said property is being rented by the defendant C. E. Foster; that the income from said property is being dissipated by the defendant and is not being applied upon the indebtedness due to the plaintiff by virtue of said above described judgment; that said property, when sold at a forced sale, will not bring sufficient to satisfy plaintiff's judgment; that said defendant C. E. Foster does not have sufficient...