Nally v. Olsson, 2290
| Decision Date | 08 November 1961 |
| Docket Number | No. 2290,2290 |
| Citation | 134 So.2d 265 |
| Parties | John NALLY, Susanna Nally, his wife, Kathleen McCooe and Margaret Bailey, Appellants, v. Albert OLSSON, Appellee. |
| Court | Florida District Court of Appeals |
Paty & Downey, West Palm Beach, for appellants.
Phillips & Hathaway, West Palm Beach, and Charles R. Wilson, Riviera Beach, for appellee.
This is an appeal from a final decree setting aside a deed of conveyance on complaint of the appellee Albert Olsson as judgment creditor of John Nally, the grantor and one of the appellants herein. The other appellants are the wife of John Nally and his two sisters who were named as grantees in the deed in question. The parties will be designated as they stood in the trial court.
On April 30, 1959 Albert Olsson filed an action for damages for malicious prosecution against John Nally and on October 24, 1959 obtained a verdict on which a $15,000 judgment was entered on November 6, 1959. At the time the said action was instituted against him John Nally held sole title to an unimproved lot in Palm Beach County purchased in 1957, and this lot was his only apparent nonexempt asset.
On August 24, 1959 during the pendency of the action aforesaid John Nally, joined by his wife Susanna Nally, executed a deed conveying the lot in question to John Nally's two sisters in New York, the defendants Kathleen McCooe and Margaret Bailey. Susanna Nally took the deed to New York early in September 1959 and purportedly received $4500 in cash from the two sisters. At the same time the sisters allegedly took from the Nallys an assignment of a jointly held $7300 mortgage on other property. The record discloses no exhibit of a receipt evidencing the delivery of $4500 cash to the Nallys or either of them.
Following the foregoing transactions in New York Susanna Nally and Kathleen McCooe came to Florida. They testified that they sewed the $4500 cash into money belts in their clothing and that after their arrival Susanna Nally put the $4500 in a strong box in her home together with $6,601.03 which apparently was the consideration for the assignment of the mortgage. The deed conveying the John Nally lot was recorded in the Public Records of Palm Beach County on October 16, 1959. It recited a consideration of $10 and other valuable considerations, and a 20cents documentary stamp was attached.
After the jury verdict for Albert Olsson was returned against John Nally in the tort action on October 24, 1959, the deed aforesaid was re-recorded on October 30, 1959 with documentary stamps attached indicating a consideration of $4500. It was testified that the deed was re-recorded with the additional stamps at the direction of a New York attorney who was the son of one of the defendant sisters. Susanna Nally and the sisters of John Nally stated that they did not know at that time of the tort action which had been pending for many months against John Nally. The $15,000 judgment against John Nally entered on November 6, 1959 continued unsatisfied and the instant litigation was instituted to set aside the offending deed. The chancellor granted the relief prayed and this appeal ensued.
Inasmuch as Susanna Nally had joined in the deed and claimed the beneficial ownership of the lot, which she asserted had been placed inadvertently in the name of John Nally, she was made a party defendant in the trial court. Her answer pleaded her claim of ownership and alleged a bona fide sale to the sisters of John Nally. The answer of the defendant sisters was a general denial of the allegations of the complaint.
The record is devoid of any cancelled check, closing statement or receipt showing payment by Susanna Nally for the purchase of the lot in the name of John Nally. She attended the closing of the purchase on July 29, 1957, but she stated that she did not realize the deed was in John Nally's name until December of 1957, at which time she had her name typed in the original deed previously recorded. She did not know the name of the person who did such typing and the deed was never rerecorded. The only documentary exhibit in this connection was a photostat of the unrecorded 'amended' deed with the name of Susanna Nally inserted.
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Frell v. Frell, 62-542
...405, 86 So. 279; and Gibson v. Love, 1851, 4 Fla. 217.' The foregoing language was quoted with approval in the case of Nally v. Olsson, Fla.App.1961, 134 So.2d 265. Further there appears to be ample authority to support the holding that a wife, in respect to her right to maintenance or alim......
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Cohen v. Kravit Estate Buyers, Inc., 4D01-4955.
...such circumstances may, by their number and joint consideration, be sufficient to constitute proof.'" Id. (quoting Nally v. Olsson, 134 So.2d 265, 267 (Fla. 2d DCA 1961); Tornwall v. Carter, 106 So.2d 96, 99 (Fla. 2d DCA 1958)). "`A litigant has a right to trial where there is the slightest......
- Joskowitz v. Holtman, 61-136