Lyon v. Arnold, 6081.

• Decision Date: 17 January 1931
• Docket Number: No. 6081.,6081.
• Citation: 46 F.2d 451
• Parties: LYON v. ARNOLD et al.
• Court: U.S. Court of Appeals — Fifth Circuit

46 F.2d 451 (1931)

LYON v. ARNOLD et al.

No. 6081.

Circuit Court of Appeals, Fifth Circuit.

January 17, 1931.

Charles J. Van Fleet, of St. Petersburg, Fla. (Van Fleet, Collins & Miller, of St. Petersburg, Fla., on the brief), for appellant.

John D. Harris and Harvey L. McGlothlin, both of St. Petersburg, Fla., for appellees.

Before FOSTER and WALKER, Circuit Judges, and GRUBB. District Judge.

GRUBB, District Judge.

This is an appeal from an order of the District Court in Bankruptcy affirming an order of the referee, which denied the bankrupt's homestead exemption in certain lands described in the order of the referee.

The facts, so far as necessary to be stated, are as follows: The appellant (the bankrupt) filed a voluntary petition in bankruptcy at Tampa, Fla., in the Southern District of Florida, on November 29, 1929. On November 23, 1926, the bankrupt, being the owner of the property now claimed as a homestead, joined by his wife, conveyed it to J. George Young and Nina M. Young, his wife. On the same date, Young and his wife conveyed the same property to Alfred C. Krayer and Pauline L. Krayer, his wife. By a decree of the chancery court of Pinellas county, Fla., rendered May 10, 1929, in a suit brought by John B. Green (who later assigned his interest to William Crawford), William Crawford, and Robert Arnold, as complainants, and the appellant and others as defendants, the foregoing deeds from the appellant and wife to Young and wife, and from Young and wife to Krayer and wife, were set aside as fraudulent as to the complainants, and the complainants adjudged to have a lien on the real estate therein conveyed on account of their judgments against appellant. The judgments were obtained on June 17, 1927, and October 6, 1928, respectively, and amounted to $21,528.50 together. On October 29, 1929, the sheriff of Pinellas county, Fla., levied an execution upon the property now claimed as a homestead by appellant to satisfy one of such judgments. On November 25, 1929, the appellant first occupied the premises, now claimed by him as a homestead, as a residence.

The question presented by the appeal is whether the appellant under the foregoing statement of facts has a right to claim a homestead exemption under section 1 of article 10 of the Constitution of Florida, free and clear of any lien of the judgments obtained by appellees.

Section 4488 of the Compiled General Laws of the State of Florida 1927 provides that:

"Every judgment at law (and decree in equity) which shall be entered in any of the circuit courts of this State shall create a lien and be binding upon the real estate of the defendant in the county where rendered."

The case of Union Bank v. Heirs of Powell, 3 Fla. 175, 52 Am. Dec. 367, supports the statute. The lien of the judgments dated back to the time of their rendition in 1927, and was declared again by the chancery decree in May, 1929. The lien by actual levy was created in October, 1929. Up to that time appellant had not had occupancy of the premises as his residence. Such occupancy was first taken by him on November 25, 1929. The status of the premises as a homestead did not exist until occupancy was begun by appellant. Solary v. Hewlett, 18 Fla. 756; Oliver v. Snowden, 18 Fla. 823, 43 Am. Rep. 338; Brandies v. Perry, 39 Fla. 172, 22 So. 268, 63 Am. St. Rep. 164. If under the Florida law the prior existence of the judgment and execution...