Howe v. Robinson

• Citation: 20 Fla. 352
• Court: United States State Supreme Court of Florida
• Decision Date: 01 June 1883
• Parties: JAMES HOWE, (FOR USE OF CALVIN B. DIBBLE) APPELLANT, v. CALVIN L. ROBINSON ET UX., APPELLEES

20 Fla. 352

JAMES HOWE, (FOR USE OF CALVIN B. DIBBLE) APPELLANT, v. CALVIN L. ROBINSON ET UX., APPELLEES

Supreme Court of Florida

June 1, 1883

Appeal from the Circuit Court for Duval county.

This case was tried before Mr. J. W. Archibald as Referee. The facts are stated in the opinion.

Decree reversed and case remanded.

H. J Baker for Appellant.

H. A Pattison and C. L. Robinson for Appellees.

OPINION

MR JUSTICE WESTCOTT.

This appeal from Duval county, Fourth Circuit, is from the judgment of a referee sustaining respondent's demurrer to appellant's amended bill and dismissing the bill.

The bill alleges substantially:

That James Howe on the 12th of October, A. D. 1867, obtained a judgment against the Florida, Atlantic and Gulf Central Railroad Company in the sum of $ 3,456.60; that in the year 1868 the road and rolling stock of this company was seized and sold by the Trustees of the Internal Improvement Fund of the State of Florida under mortgage bonds which constituted a first lien upon the road, rolling stock and franchises of the company to William E. Jackson and his associates; that the Trustees executed a deed to them covering the road, its equipments and franchises of the company; that the purchase money paid was about sufficient to pay twenty cents on the mortgage debt, leaving nothing to pay plaintiff's judgment and other creditors; that said company was, at the time plaintiff obtained his judgment, seised and possessed in its own right of lot 6, block 53, in the City of Jacksonville; that this lot was not embraced in the mortgage lien under which the Trustee sale was had, and that it is still subject to the lien of plaintiff's judgment of October 12th, 1867; that on the 12th of October, 1868, Jacob Edrihi obtained a judgment against said company; that in the year 1877 defendants, Calvin L. Robinson and Elizabeth Robinson, his wife, procured the levy of an execution, which was issued on the judgment of the 12th of October, 1868, in the year 1869, upon the said lot 6, block 53; that said levy was made "for the purpose, as is pretended, of perfecting an unlawful and illegal claim previously set up by the defendant, Elizabeth Robinson," and procured the advertisement of said land, and on the sale of said lot by the sheriff it was bid in by the said C. L. Robinson for his said wife; that the lot is still subject to said lien; that before any execution was issued upon plaintiff's judgment the Florida, Atlantic and Gulf Central Railroad Company was destroyed by the sale and transfer of its property and franchises as aforesaid and had no longer any legal existence.

Plaintiff prays: That the sale under the junior Edrihi judgment be set aside; that the deed made thereunder may be cancelled and set aside and that the lot may be sold and the proceeds of the sale be applied to his judgment of the 12th of October, 1867.

The grounds of appeal set up here are, first, error in sustaining the demurrer, and second, error in taking the exceptions to the answer as abandoned. The last ground of appeal has been abandoned here, both parties confining themselves in argument to the questions arising upon the demurrer, and to that subject we confine ourselves in the consideration of the case.

The first position assumed in support of this demurrer, and upon which, apparently, respondents rely with great confidence, is that the property of the defendant in judgment, which is in the possession of the respondents here, cannot be subjected to the claim of the plaintiff as he has not issued an execution upon his judgment, in other words, that equity will not take cognizance of the claim until execution issued, and return of nulla bona thereon.

We do not propose to discuss this question further than it is involved in this case. The plaintiff seeks here to subject property of a dissolved corporation to his judgment debt, and in such case as against the corporation it is not necessary that he should have even a judgment to entitle him and other creditors to a standing in a court of equity. The common law doctrine that a dissolution of a corporation extinguishes its debts does not prevail in this country. These "debts survive the dissolution of the corporation and creditors may enforce their claims against any property belonging to the corporation which has not passed into the hands of a bona fide purchaser; for such property will be held affected with a trust primarily for the creditors of the company." Wood et al. vs. Dunmar et al., 3 Mason 312; Curran vs. The State of Arkansas, 15 How. (U.S.) 304, 14 L.Ed. 705; Nevett vs. Bank of Port Gibson, 6 S. & M. 513; Hightower vs. Thornton, 8 Ga. 486; Shields vs. Ohio, 95 U.S. 319, 24 L.Ed. 357.

Says Chancellor Kent, the property and debts belonging to the corporation remain a trust fund subject to the cognizance and control of a court of equity for the benefit of creditors. This being so, then...