Mcclellan v. Solomon

• Decision Date: 07 September 1887
• Citation: 23 Fla. 437,2 So. 825
• Parties: McCLELLAN v. SOLOMON.
• Court: Florida Supreme Court

2 So. 825

23 Fla. 437

McCLELLAN v. SOLOMON.

Florida Supreme Court

September 7, 1887

Appeal from Jackson county, First judicial circuit; ENOCH J. VAUN Judge of Third judicial circuit, presiding.

Syllabus by the Court

SYLLABUS

The undivided interest of an heir in land may be attached pending the administration of the estate of which the land is a part. The levy of the writ of attachment does not dispossess the administrator, nor interfere with the administration of the estate.

Where one of several heirs is also the administrator of the estate of the person from whom they inherit, the other heirs have no equitable lien on his interest in land of the estate for the payment of a claim they may have against him on account of his fraudulent administration of the estate.

The lien of judgment rendered in an action at law dates, as to property previously attached in such action, from the time of the levy of the writ of attachment, and the levy is constructive notice from its date to all subsequent purchasers from the defendant in attachment. This is so though the property at the time of the levy was held by a third person, not a party to the suit, under a fraudulent conveyance from the defendant in attachment.

Where a bill is filed by creditors having no judgment or other lien to set aside a fraudulent conveyance, and a decree is obtained, and an undivided interest in land so conveyed is sold as the property of the fraudulent grantor, and subsequently the same undivided interest is sold under a judgment against the fraudulent grantor rendered subsequently to such decree, but in an action in which a writ of attachment had been levied on such interest prior to such decree, the title acquired by the purchaser at the judgment sale relates back to the levy of the attachment, and is superior to that of the purchaser at the sale under the decree, or to that of the vendee of the latter purchaser.

A plaintiff in an action at law against his debtor may levy a writ of attachment on the undivided interest of the latter in land held by a third person under a fraudulent conveyance from the debtor, and on obtaining judgment may sell such interest, and the purchaser may, in an action of ejectment brought by him to recover this interest from the person in possession, raise the question of the fraud in the conveyance from the debtor.

Where in an action of ejectment, one of the parties claims title purchased at a sale under a judgment against a fraudulent grantor, and the other claims title purchased at a sale under a decree against the same grantor, which decree adjudged the conveyance fraudulent, and subjected the land to sale as the property of such grantor, the introduction in evidence, or admission by the latter party of the decree and proceedings upon which it is founded, relieves the former from making proof of the fraud in such conveyance.

COUNSEL

John W. Malone, for appellant.

D. L. McKinnon, for appellee.

OPINION

RANEY J.

Action of ejectment by appellee against appellant. Plea of not guilty. The case was submitted to the court without a jury.

The facts in this case, which were agreed on by the parties, are substantially as follows: That appellee is in possession of the lands, the one-fifth interest in which is sued for containing 240 acres, and that said land constituted a portion of the real estate left by Grissom C. Bird, who died intestate in Jackson county, on the eleventh of October, 1862. John S. Bird, a son of said Grissom C. Bird, and one of his heirs, was appointed his administrator, and qualified as such on the tenth day of August, 1864; that John S. Bird, on the second of December, 1867, upon petition filed in the county court of Jackson county, therein setting forth that a sale of the real estate of Grissom C. Bird, deceased, was necessary in order to pay the debts of said estate, and that said Grissom C. Bird left a considerable personal estate, but that all of it had been consumed in paying the debts of said estate, and the costs of administration, obtained an order from the county judge of said county for leave to sell the real estate of said Grissom C. Bird, deceased, including the lands above mentioned; that said John S. Bird, on the sixth of January, 1868, offered said real estate at public sale, and that it was bid off by D. C. Dawkins, and subsequently deeded by said Dawkins to Mary J. Bird, the wife of John S. Bird; that George W. Jones, on the fifth of January, 1882, instituted a suit in the circuit court of Jackson county against the said John S. Bird, individually, and on the same day caused an attachment to issue in said suit, and on the next day said attachment was levied on the one-fifth individual interest of said John S. Bird in said lands; that William C. Bird, Ellen M. Bradwell, Martha Reagan, and the administrator of Charles M. Compton, deceased, the said Mary, Ellen, Martha, and Charles being also heirs of Grissom C. Bird, instituted on the twenty-first of July, 1882, a suit in chancery in the circuit court of Jackson county, against the said John S. Bird, as administrator of Grissom C. Bird, and Andrew Scott, as administrator of Mary J. Bird, and charged in their bill that the sale of the lands to D. C. Dawkins and Mary J. Bird was fraudulent; that the personal property of Grissom C. Bird, deceased, was more than sufficient to pay all the just debts and liabilities at the time of his death, and that John S. Bird had, by various misrepresentations, endeavored to defraud his co-heirs out of their share of said estate; that the sale of said real estate was not necessary to pay the debts of said estate, and that John S. Bird, in consequence of his maladministration of the estate was indebted thereto in the sum of $4,077.76, and prayed that the sale of the lands to D. C. Dawkins and to Mary J. Bird be set aside as fraudulent and void; that on the twenty-sixth of January, 1883, the chancellor made an interlocutory decree in said cause, declaring the sale of said lands to Dawkins and Mary J. Bird fraudulent, and set the sale aside, and on the twenty-second day of March, in the same year, made a final decree, adjudging and directing that said lands be sold by Frank Phillips, master, and that said master pay over the proceeds of said sale equally to the heirs, except the share of John S. Bird, which should not be paid to him until he paid his indebtedness to said estate, and, upon his failure to do so for 30 days, then his share to be equally divided among the other heirs; that said master on the seventh of May, 1883, sold said lands in pursuance of said decree to William C. Bird for $1,000, and divided the proceeds arising therefrom among the heirs of Grissom C. Bird, except John S. Bird, who failed to pay his indebtedness to said estate, and on the thirtieth of May, 1883, the chancellor made a decree confirming the sale of said lands; that George W. Jones, on the fourteenth of November, 1883, obtained a judgment against said John S. Bird in his said suit for $2,367.69, and on the twenty-third of November, 1883, caused an execution to be issued and levied upon the undivided interest of said John S. Bird in said land; that on April 7, 1884, said undivided interest was sold by the sheriff of said county by virtue of said execution, and was purchased at the sale thereof by the appellant for $150, and a deed thereto was executed to the appellant bearing date April 7, 1884, and recorded in the records of Jackson county on the twelfth of December, 1885; that appellee on the sixteenth of March, 1885, purchased the said lands of William C. Bird, and received from him a deed of same date, which was recorded on the eighteenth of May, 1885; that appellee had notice of the sale of the undivided one-fifth interest of John S. Bird in...