Lindsley v. Phare

• Decision Date: 14 June 1934
• Parties: LINDSLEY et al. v. PHARE et ux.
• Court: Florida Supreme Court

155 So. 812

115 Fla. 454

LINDSLEY et al. v. PHARE et ux.

Florida Supreme Court

June 14, 1934

Rehearing Denied July 6, 1934.

Suit by John J. Phare and wife against Frances Lindsley and others. From an order overruling a demurrer to the bill of complaint defendants appeal.

Affirmed.

DAVIS C.J., dissenting. Appeal from Circuit Court, Pasco County; John U. Byrd, Judge.

COUNSEL

Archie Clement, of Tarpon Springs, for appellants.

Orvil L. Dayton, Jr., of Dade City, for appellees.

OPINION

BUFORD Justice.

In 1929 the appellees here brought to this court for review a final decree in the case of John J. Phare and Wife, Elizabeth Gregory Phare, v. Warner E. Randall. See 97 Fla. 858, 122 So 217, 218. The decree in that case provided, amongst other things:

'That the said defendants, John J. Phare and Elizabeth Gregory Phare, at the time of the filing of said Bill and of the allowance of the said amendment of February 8, 1926, were the owners of certain lots and of certain personal property both of which they held by virtue of being conveyed or transferred or made payable to them in one and the same instrument and thereby vesting them with said properties as an estate by entireties, the said properties so held as an estate by entireties being as follows, to-wit:

'(g) Lots 1 and 3 to 11, inclusive, of Block 2 of Fair-Haven Subdivision, being a re-subdivision of Lots 7 and 8 in Block 207 in the Town of New Port Richey, Florida, and in making said re-subdivision Lot No. 7 of Block 207 was the property of John J. Phare and Elizabeth Gregory Phare, so that all said re-subdivided lots described, to-wit, Lots 1 and 3 to 11, inclusive, of Block 2 of Fair Haven subdivision were and are property of said John J. and Elizabeth G. Phare, conveyed to them by deed dated April 16th, 1925; made by E. D. Fenton and his wife Mable L. Fenton, which deed is recorded in Deed Book 63, Page 380, in the Public Records of Pasco County, and by deed the title to said land was conveyed to said John J. Phare and Elizabeth Gregory Phare, their heirs and assigns forever, and, to have and to hold the same in fee simple forever; and with warranty of title and in the usual from of a warranty deed, properly executed, acknowledged and recorded.

'(h) Also, as personal property they hold as an estate by entireties a certain promissory note in the sum of $1,300.00 dated April 1st 1924, executed by Frances Lindsley, widow, payable three years after date to the order of John J. Phare and Elizabeth Gregory Phare with interest from date until paid, at the rate of eight per cent. per annum payable semi-annually. Said note is secured by a mortgage executed by Frances Lindsley, widow, having the same date, mortgaging to the said John J. Phare and Elizabeth Gregory Phare, their heirs and assigns forever, Lot No. 1 in Block No. 156, Town of New Port Richey, Florida, according to the Port Richey's Company's Plat recorded in Book 2, page 21, Public Records of Pasco County, which mortgage itself is recorded in Mortgage Book 18, page 266, in the Public Records of said Pasco County, Florida,

'And which properties being thus held as an estate by entireties are subject to be charged in equity for the payment of the indebtedness due to the complainant, Warner E. Randall, as hereinbefore recited.'

It further provided:

'And it having been alleged in the Bill that certain property therein described is held by the defendants John J. Phare and Elizabeth Gregory Phare as an estate by the entireties and the answer of the said defendants having admitted that the specific properties named are so held as an estate by entireties and the Court having found from the evidence submitted that it is true that such properties are held by an estate by entireties, it is further ordered and decreed that the amount and the several sums decreed in favor of the complainant be and they are made a charge and a lien in equity against the said items of property held as an estate by entireties, said properties referred to being those fully described in paragraph 11, subparagraphs (g) and (h) of this decree, and that the said properties be sold by the Special Master as elsewhere provided in this decree.'

The decree in this regard was reversed, and in that case we held:

'As to the separate property of Elizabeth Gregory Phare, the cause is reversed on authority of Blood v. Hunt , 121 So. 886, and Blood v. Huey , 121 So. 896, decided by this court April 16, 1929; Rice v. Cummings, 51 Fla. 535, 40 So. 889. As to the joint property or property by the entireties of John J. and Elizabeth Gregory Phare the cause is reversed on authority of Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So. 376. As to the homestead property of John J. Phare, the cause is reversed on authority of section 1 of article 10 of the Constitution; the judgment lien here brought in question not being within the terms of those enumerated in that article.'

After the appeal was taken, the notes and mortgage above referred to were sold by the master and bought in by the maker of such notes and mortgage. Thereafter the appellee here filed bill of complaint to foreclose that mortgage, alleging all the salient facts necessary to be alleged in a bill to foreclose a mortgage and further alleging that the notes and mortgage had been unlawfully taken by the master in chancery in that former suit and sold under the terms of the decree above referred to; the maker of the notes and mortgage being the purchaser at such sale. It is alleged in the bill that the master did not convey, and could not convey, any title to the purchaser, because the notes and mortgage were property of the complainants by the entireties and were not property the title to which was so vested that they were subject to sale to satisfy the decree which had been appealed from and reversed.

Demurrer was filed to the bill of complaint. The chancellor first sustained the demurrer, and then he granted a rehearing, and, after considerable time, entered another order overruling the demurrer. From that latter order the appeal is taken.

It is first contended that error was committed by the chancellor when he denied a motion to dismiss the bill of complaint after the case had lain dormant with no steps being taken for a period of more than three years. This objection is not well taken because the order of the chancellor overruling the demurrer states upon its face that steps had been taken in the cause and that the matter had been presented for his consideration within three years, and there is no evidence of superior dignity that this certificate of the chancellor is not true. We give it full credence, attributing to it the presumption which it is entitled to have as a part of the chancellor's decree.

The next question presented is whether or not the complainants in this suit may recover from the purchaser at a master's sale. We admit that the general rule is, as stated in Johnson et al. v. McKinnon, 54 Fla. 221, 45 So. 23, 28, 13 L. R. A. (N. S.) 874, 127 Am. St. Rep. 135, 14 Ann. Cas. 180:

'Upon the reversal of a judgment after a sale has been made under execution to a stranger to the suit, the defendant must seek redress from the plaintiff. Where the plaintiff has received the proceeds of the sale, the defendant may recover in an action for money had and received. If, however, the money, after being paid to plaintiff, is by him paid to a third person, it cannot be recovered from such person, though he was one of the plaintiff's attorneys.'

And, as we said in Simms v. City of Tampa, 52 Fla. 641, 42 So. 884, 885:

'There was no error in the order made and questioned here. It is well settled that restitution, on reversal of a judgment, can be compelled only from parties to the record, or from their beneficial assignees, or, in case of the death of the execution plaintiff, from his executor or administrator. Restitution cannot be compelled from third persons, strangers to the record, who were bona fide purchasers at a sale under process dependent upon a judgment subsequently reversed, or who acquired bona fide collateral rights thereunder, and their rights are in no way affected by the subsequent reversal of the judgment. Particularly should restitution be denied as against a stranger to the record, when sought in a summary manner by motion, rule, or petition, as was attempted in this case.'

In the latter case many authorities are cited supporting that enunciation.

But in this case the decree under which the sale was made showed upon its face that the property ordered sold was held as an estate by the entireties and was not subject to sale to satisfy the deficiency decree for which it was ordered sold. In other words, the decree showed upon its face that the chancellor had no more authority to order this property sold to satisfy the deficiency decree than he had to order the property of one who was a stranger to the suit sold for the same purpose. The title to the property sold was not in the defendant. Moreover, it appears that the purchaser at the sale, being the maker of the notes and mortgage on the property involved, had full knowledge that the title to such property was held as an estate by the entireties by husband and wife and was charged with knowledge that it could not be sold to satisfy the deficiency decree involved. The decree ordering the sale of the notes and mortgage showed upon its face that such notes and mortgage constituted property of which the court did not have jurisdiction to order sale.

In Norton v. Nebraska Loan & Trust Co. et al., 35 Neb. 466, 53 N.W. 481, 18 L. R. A. 88, 37 Am. St. Rep. 441, the court said:

'It is a well-settled rule that the doctrine of caveat emptor applies to all judicial sales, subject to the...