Mckinne v. Dickenson

• Citation: 24 Fla. 366,5 So. 34
• Parties: McKINNE et al. v. DICKENSON et al.
• Decision Date: 09 October 1888
• Court: United States State Supreme Court of Florida

5 So. 34

24 Fla. 366

McKINNE et al. v. DICKENSON et al.

Florida Supreme Court

October 9, 1888

Appeal from circuit court, Jackson county; ENOCH J. VANN, Judge.

Bill of complaint by John H. McKinne and another against E. T. C Dickenson and another to have a bill of sale declared void and to enjoin defendants from enforcing the same. From an order granting the injunction defendants appeal.

Syllabus by the Court

SYLLABUS

Upon an appeal from an order granting an injunction, the action of the chancellor will not be reversed, unless it is clear that he has committed an error or abused a sound judicial discretion in granting it.

Where the hearing of an application for an injunction is upon bill answer, and affidavits in support of the bill, and the answer fails to explain as fully as it should one point material in the case, and the action of the chancellor in granting the injunction is, as to this point, supported by the bill and the affidavits, though controverted by the answer to the extent that the latter goes, it cannot be said that the chancellor has abused his discretion, or committed any error justifying the interposition of the appellate court.

COUNSEL John W. Malone, for appellants.

Liddon & Carter, for appellees.

OPINION

RANEY J.

The bill of complaint in this case, filed June 19, 1886, by Dickenson and Taylor, appellees, alleges that on October 9 1883, E. K. Holliday, then living, was indebted to Dickenson and to Taylor, respectively, describing such debts.

That on such day said Holliday was, as complainants are informed and believe, insolvent, and indebted to a greater amount than the entire value of his visible property; and that he and McKinne, one of the appellants, fraudulently colluded, contrived, and planned together to defraud, embarrass, hinder, and delay complainants, the appellees, and other of Holliday's creditors in the collection of the sums due them; and, in pursuance of such plan, Holliday executed a bill of sale to McKinne of one yoke of oxen, (naming them,) and one lot (about 18 head) of hogs, (giving their marks,) two wagons, and about 500 bushels of corn on the McKinne plantation; a copy of the bill of sale being annexed to the bill as a part thereof, and the consideration named in it being $400, and its date being said day of October. That this bill of sale was not made upon any good or valid consideration, nor intended to pass the title of the property to McKinne; but was executed through the collusion, covin, deceit, and fraud, and with the intent to embarrass, hinder, and delay complainants, and other creditors of Holliday, as aforesaid.

That Holliday remained in possession of the property, claiming the same as his own, and exercising acts of ownership and control over it, and using and disposing of it as his own, up to the date of his death, December 3, 1883, and died in full possession and enjoyment of the same; and that after his death it went into the possession of Thomas Holliday, as the administrator of said E. K. Holliday, (said Thomas, as such administrator, being the other appellee and defendant herein with McKinne,) and that no part of such property was ever in the possession of McKinne.

That Thomas Holliday was appointed such administrator by the county judge of Jackson county on December 6, 1883, and entered immediately on the discharge of his duties.

That on the 10th day of said month McKinne instituted replevin to recover of said Thomas the said property, basing his right to recover solely on said bill. That said Thomas defended, and urged as a matter of defense the alleged fraudulent purpose of said bill of sale, but it was held by the court that the administrator could not avail himself of such defense; and on June 10, 1886, McKinne recovered judgment for the possession of the following property included in such bill of sale, viz., 400 bushels of corn, 17 head of hogs, one yoke of oxen, two wagons, (giving their respective values,) and interest on $388 at 8 per cent. from December 19, 1883, and such judgment awarding the usual writ of possession. That McKinne is about to sue out process for the enforcement of this judgment.

That on June 7, 1886, Dickenson recovered judgment for $430.35, and Taylor recovered judgment for $419.77, on their respective claims against said administrator, as such, and that executions issued, and have been returnednulla bona.

That the property embraced in the bill of sale included nearly all the visible property of the intestate, and that all his property not so included was under a mortgage for much more than its value to named parties, excepting his wearing apparel, household and kitchen furniture.

That if the property covered by the bill of sale is not held to be assets for the payment of intestate's debts, the complainants will lose their entire respective claims, as the other unincumbered assets of the estate are not of the value of $100, and are insufficient to pay even the expenses of administration.

That on May 10, 1886, the administrator suggested the insolvency of the estate in the county judge's office, and is now administering the same as such.

The prayer is that the bill of sale be declared fraudulent and void as to complainants, and that the property be held as assets of the estate applicable to the payment of intestate's debts, and that McKinne be enjoined from suing out process on his judgment, or enforcing the same, and that the administrator be restrained from delivering to McKinne any of the property, or from paying him any money, or other thing, on account thereof, and for general relief. The bill is sworn to by the complainants.

The hearing of the application for injunction was upon bill, affidavits of Theodore R. Holliday and the complainant Taylor, and the answers.

The affidavit of Theodore R. Holliday states that he is acquainted with the parties, and familiar with the property described in the bill of sale, 'to-wit: the yoke of black oxen named Joe and Rolley; the lot of hogs; the corn in the crib on the McKinne plantation; and the two wagons.' That all of it was in the possession of the testator at his death, December 3, 1883, and that he was using and disposing of the same as his own. That there was no change whatever in the possession, control, use, and enjoyment of it after the 9th of October, 1883. The testator was deponent's brother, and the deponent was on familiar terms with him and McKinne; met them frequently, and talked with them about their business affairs; but neither of them ever referred to any sale of the property.

The answer of the administrator, Thomas Holliday, which must be regarded as having been treated by the chancellor simply as an affidavit on the hearing, states that his intestate remained in full possession of the property up to the time of his death, December 3, 1883, and died in full possession of the same; and, after his death, all the property came into his own hands as administrator, he having been appointed administrator December 6, 1883, and entered immediately upon the discharge of his duties; and that he has suggested insolvency as alleged.

That no portion of the property covered by the bill of sale was ever in the hands of McKinne.

That the bill of sale included all the visible property of the intestate, except as stated in the bill of complaint.

That after October 9, 1883, the date of the bill of sale, his intestate remained in full possession, use, and enjoyment of all the property covered by it, claiming and disposing of the same.

It denies the allegations of fraudulent collusion, plan, etc., to defraud, etc., and delay the complainants, or any other creditors of the intestate, in the collection of their debts; or that the bill of sale was executed and delivered in pursuance of such plan; or that it was made without valid consideration; or that it was not intended to pass the title to defendant of the property mentioned; or that the bill was executed through collusion, etc., of the intestate and defendant, or either of them, to the end and purpose of defrauding, etc., and delaying complainants, or other creditors of the intestate in the collection of debts due them by him; or that the intestate remained in possession of the property, claiming the same as his own, and exercising acts of ownership over the same, and controlling, using, and disposing of them as his own, up to the date of his death, and in the full possession and enjoyment of the same; or that said property, after the death of the intestate, went into the hands of said Thomas Holliday, as administrator, as aforesaid; and also, 'denies that no part of said property was in the possession of' McKinne. It also denies that the property embraced in the bill of sale included nearly all the visible property of the intestate, and that all his property not included in said bill of sale was under a mortgage to much more than its value to Woolfolk, or Dekle & Daniel, except his wearing apparel, household and kitchen furniture.

It admits the action of replevin against Thomas Holliday, and the recovery of judgment thereon, and that he (deponent) is proceeding to enforce the same. This action was, it charges brought against Thomas Holliday individually, and not as the administrator of E. K. H., and states that said Thomas went upon the plantation of defendant, in Jackson county, before he had administered upon the estate of E. K. H., and wrongfully took possession of said property, and refused to surrender possession to defendant upon demand made therefor; and thereupon defendant began his action of replevin, and had said property levied upon, and then the said Thomas re-replevied the same, giving bond, with the said E....