Neubert v. Massman

• Decision Date: 28 March 1896
• Citation: 19 So. 625,37 Fla. 91
• Parties: NEUBERT et al. v. MASSMAN et al.
• Court: Florida Supreme Court

19 So. 625

37 Fla. 91

NEUBERT et al. v. MASSMAN et al.

Florida Supreme Court

March 28, 1896

Appeal from circuit court, Alachua county; J. J. Finley, Judge.

Bill by Massman Bros. & Co. and others against William Neubert and others. From the decree rendered defendants appeals. Reversed in part and in part affirmed.

Syllabus by the Court

SYLLABUS

1. An appeal in chancery opens the whole case for the consideration of the appellate court, and a cross appeal is not essential to entitle an appellee to a reversal of a decree which contains errors prejudicial to his rights.

2. The law will not permit a debtor in failing circumstances to sell his land, and convey it by deed without reservations, and yet secretly reserve to himself the equity of redemption for his own use and benefit. Such a transfer lacks the element of good faith, and is fraudulent as to his creditors, although made for a valuable consideration.

3. A court of equity will not lend its aid to reach equitable assets of the debtor until the creditor has reduced his demand to a judgment, caused execution to issue thereon, and a return of nulla bona to be made on the execution by the proper officer.

4. A complainant who had no cause of action at the filing of his original bill cannot maintain a supplemental bill on a cause of action that accrued thereafter.

5. Bill filed against two defendants after a joint demurrer overruled. One of the defendants was in default in answering. The other answered, and the case proceeded to final hearing. On appeal an objection is made for the first time in this court that a decree pro confesso was not entered against the party in default. Held not to be reversible error.

COUNSEL Hampton & Ammons, for appellants.

E. C F. Sanchez and Thos. F. King, for appellees.

OPINION

Massman Bros. & Co. and Gomm & Leffler filed their bill in equity against William Neubert and Edward Weil for the purpose of subjecting a certain lot and tenements, which they alleged Weil had purchased and paid for, and caused to be fraudulently transferred to one Pauline Brown, and afterwards to Neubert, to the payment of certain judgments which they alleged that they had recovered in the circuit court for Alachua county against Edward Weil and Solomon Stiller, as copartners in trade under the firm name of Weil &amp Stiller. The defendants demurred to the bill because Solomon Stiller was not a party thereto, and no executions were issued on said judgments. The complainants then amended their bill by alleging that execution had been issued on the judgment in favor of Massman Bros. & Co., and return of nulla bona made thereon by the proper officer before the filing of the original bill, and obtained leave of the court to file a supplemental bill. The court then overruled the first ground of this demurrer. Afterwards complainants filed their supplemental bill, and stated therein, among other things, that since the filing of the original bill execution had been issued upon the judgment in favor of Gomm & Leffler, and return of nulla bona made thereon by the proper officer. The defendants demurred to this supplemental bill because it appeared therefrom that Gomm & Leffler had not caused execution to be issued on their judgment prior to the filing of the original bill; but the court overruled this demurrer also. Neubert then filed his separate answer to the bill, and therein alleged that he was a bona fide purchaser for a valuable consideration; but Weil made no answer at all. A general replication was filed to this answer, and testimony was taken before a special master, and reported to the court. A final hearing was then had, and the court decreed that upon the payment to Neubert of $441.30, with interest thereon from the 1st of December, 1877, the lot and improvements he held subject to the judgments of the plaintiffs, and be sold by a commissioner named in the decree, and the proceeds arising therefrom be applied pro rata on said judgments, etc., and the defendants appealed therefrom.

MALONE, J. (after stating the facts).

Both the appellants and appellees are dissatisfied with this decree, and ask its reversal. But the appellants contend that the appellees cannot be heard in opposition to it, because they have not taken a cross appeal. This contention is contrary to the rule which has been established by the decisions of this court. It has been uniformly and repeatedly decided by this court that an appeal in chancery opens the whole case for the consideration of the appellate court, and that a cross appeal is unnecessary to entitle an appellee to a reversal of a decree which contains errors prejudicial to his rights. O'Neil v. Percival, 25 Fla. 118, 5 So 809; Foster v. Ambler, 24 Fla. 519, 5 So. 263; Fairchild v. House, 18 Fla. 770; Trust Co. v. Cole, 4 Fla. 359.

We will now consider the assignment of errors. It is stated in the petition of appeal that the decree is contrary to the facts and pleadings, and it is not supported by the weight of the testimony or pleadings, and on that account is erroneous. This assignment includes the first, second, and third assignments of error in the amended petition of appeal, and we will consider them together. It appears from the evidence that Weil & Stiller were engaged in a mercantile business in Gainesville, and failed. While in failing circumstances they made a bill of sale to Neubert of all of their property, comprising a stock of goods, in part payment of their indebtedness to him. The bill of sale is dated January 29, 1877, and purports to have been given for a consideration of $1,260. Neubert then moved a part of these goods to his own house, and packed them in boxes, but left a part, amounting in value to $500 or $600, remaining in the storehouse of Weil & Stiller. These were soon afterwards sold by Weil to Tobias Brown, who took possession of this storehouse as soon as Weil & Stiller vacated it. Neubert never questioned this sale, or made any inquiry about these goods. A few days after this transaction, Neubert indorsed a promissory note for $441.30, payable the following December, which Weil made and delivered to one Jacob Cohen. The lot in controversy was purchased from J. H. Roper by Weil at the price of $500, and paid for by him, but the exact date of the purchase is not shown. However, at that time, Weil & Stiller were indebted to the plaintiffs, and in failing circumstances. The lot was unimproved, and incumbered with a decree of foreclosure in favor of Edward Haile against J. H. Roper, and it was necessary to have it sold under this decree in order that Weil might become the purchaser at such sale, and thereby acquire a title to it free from all incumbrances. Accordingly it was Weil at the nominal price of $100, in pursuance by the sheriff of Alachua county on the 2d day of July, 1877, and was purchased by Weil at the nominal price of $100, in pusuance of his previous agreement with Roper. He did not take the title in his own name, but had it put in the name of Pauline Brown, and afterwards in the name of Neubert. A short time after these transactions Weil contracted with W. F. Flynn to construct a dwelling house for him on this lot, and Flynn began the construction of it. Both Weil and Neubert furnished money and material for its construction, and when it was almost completed Weil conveyed his interest in it to Neubert, by a deed dated December 19, 1878, for a consideration of $450, expressed therein. Neubert procured from Pauline Brown another deed, dated December 18, 1877, in which it was recited that the consideration stated in her former deed was wrong. The bona fides of these several conveyances are the real matters in controversy.

Ordinarily, the purchaser of real property takes the title to it in his own name, and when he puts it in the name of another he does so for some purpose. The purpose of Weil in putting the title to this lot in the name of Pauline Brown, instead of taking it in his own name, is now the subject of inquiry, and we are not left to inference or conjecture to ascertain it. The testimony shows that his purpose was to conceal it from his creditors, and prevent them from subjecting it to the payment of his debts. It also shows that Pauline Brown had knowledge of his purpose, and participated in it. The conveyance to her was without consideration, and lacking in the element of good faith, and on that account ineffectual to shield the lot from the claims of Weil's creditors.

The purpose and character of her conveyance to...