Thalheimer v. Tischler
| Decision Date | 20 April 1908 |
| Citation | 46 So. 514,55 Fla. 796 |
| Parties | THALHEIMER et al. v. TISCHLER et al. |
| Court | Florida Supreme Court |
Rehearing Denied May 26, 1908.
Appeal from Circuit Court, Duval County; Rhydon M. Call, Judge.
Bill by Henry Thalheimer and another, partners, against Philip Tischler and others. From the decree adjudging the rights of the parties, complainants appeal. Reversed and remanded, with directions.
Syllabus by the Court
An equitable asset of a debtor can be reached only by proper proceedings in a court of equity, and is not subject to levy and sale under an execution at law issued upon a judgment recovered against such debtor, or upon a deficiency decree rendered against him in a suit for the foreclosure of a mortgage; and where such levies and sales are made and deeds executed by the sheriff they are all nullities, and vest no title in the purchasers.
A lease for a term of years of real estate, wherein the lessee is given the option at any time after the expiration of a certain fixed period therein to purchase the leased property for a certain stipulated price, and such lessee, in the event he failed to exercise such option to purchase, is given therein the right, at the expiration of the term, to be paid one-half of the valuation of the improvements he had placed on the leased premises as fixed by three disinterested persons, does not give the lessee such an interest in the leased premises as can be subjected to sale under an execution at law. This contemporaneous intermixture and mingling of legal and equitable interests creates an amalgam that can only be properly disposed of and sold under a decree in equity.
One who lends money to another for the purpose of erecting a building on a lot upon the faith of a verbal agreement based upon the prior assignment of a lease combined with an option to purchase has an equity against such debtor for the amount of money so advanced or loaned superior to that of after-acquired judgments or deficiency decrees in a mortgage foreclosure against him, or to the equity, if any, of a volunteer purchaser at an illegal execution sale of the debtor's interest in the property, even though the judgments against such debtor on which the executions issued may have been recovered prior to the lending of the money to him by such creditor.
Axtell & Rinehart and J. E. Hartrideg, for appellants.
Bisbee & Bedell and Bryan & Bryan, for appellees. On the 16th day of January, 1906, the appellants, as complainants, filed their bill in chancery in the circuit court for Duval county against all the appellees, as defendants, with the exception of the appellee A. T. French, who was made a defendant by a supplemental bill filed by the appellants on the 20th day of September, 1906 for the purpose of foreclosing certain liens in favor of the appellants created by the defendant Philip Tischler upon certain described properties.
The pleadings, exhibits, evidence, master's report exceptions thereto, final decree, and the proceedings generally are quite voluminous, comprising 325 typewritten pages. In view of the conclusion which we have reached, and also by reason of the fact that there is no serious dispute among the respective parties as to the facts, and the points of law growing out of the various complicated transactions are clearly and succinctly presented to us for determination no extended statement of the pleadings and evidence is necessary. The bill sought the foreclosure of a lien against a certain described parcel of land, commonly known as the 'Henderson lot,' or the 'Placide lot,' by reason of the fact that the Placide Hotel was constructed thereon, and also sought the foreclosure of a lien against two other pieces of property, known, respectively, as the 'Bailey property,' and the 'Honeymoon (or Ward) property.' The rights of the respective parties with reference to the last two pieces of property were satisfactorily settled by the court below in the decree rendered, to the effect that the complainants had a lien thereon for the sum of $15,203.12, which portion of the decree is conceded to be correct by all parties. So no further reference need be made thereto. So far as this court is concerned, the litigation is confined to the Henderson lot. The court below decreed that the complainants had a lien thereon for the sum of $10,278.86, the amount found to be due for moneys advanced by the complainants to Philip Tischler in the years 1891 and 1892, but refused to decree a lien thereon for the further sum of $6,269.80, the amount found to be due from Tischler to the complainants for moneys advanced in the years 1901 and 1902. The court further found and decreed that the defendants Fred K. Robinson and O. K. Robinson, her husband, were the owners and assigns of all the estate, right, title, and interest which the defendant Philip Tischler had in and to the Henderson lot on the 15th day of November, 1905, or at any time thereafter up to and including the date of the sheriff's sale to them of said property, to which we shall have occasion to refer hereinafter, subject only to the lien of the complainants thereon for the sum of $10,278.85, together with interest thereon from the 8th day of August, 1907, at the rate of 8 per cent. per annum, for principal and interest, and the further sum of $750 for attorney's fees, and the proportion of costs of suit which was fixed by the decree, and that, with the exception of such lien of the complainants, the Robinsons were entiled to such property, free and clear of any interest and all other claims or liens of any and all of the parties to the suit. The Robinsons seek to maintain the decree as it stands, while the complainants seek a reversal because of the claim of the Robinsons having been adjudicated to be superior to the lien of the complainants for the additional sum of $6,269.80; and the defendant A. T. French, who has assigned cross-errors, also seeks a reversal of the decree, claiming that his title to the property in dispute is superior to that of the Robinsons, and that he is entitled thereto or the proceeds arising from the sale thereof under the decree, subject only to the lien of the complainants for the sum of $10,278.86, together with the attorney's fees and costs as fixed by the decree. As we understand from the briefs and oral arguments of the complainants, the Robinsons, and French, who are the only parties contending before this court, it is conceded by all of them that the decree is correct in so far as it finds that the complainants have a first lien on the property for the sum of $10,278.86. Both the complainants and French filed exceptions to the master's report, all of which were overruled by the court, which rulings are respectively assigned as error, and errors are also assigned by both the complainants and French upon the final decree; but we deem it unnecessary to copy the assignments of error or to discuss them in detail. The points presented for our determination seem to resolve themselves into the following: First. Are the complainants entitled to a lien on the property for the additional sum, as claimed by them, of $6,269.80, and, if so, is such lien superior to the claims, liens, or titles of the Robinsons or French? Second. Are the Robinsons entitled to what was awarded them in the decree? Third. Is the claim of French superior to that of the Robinsons, and subordinate only to the claim of the complainants for the sum of $10,278.86? The answering of these questions is the task which confronts us. In order to do this we shall have to ascertain and set forth the bases of the claims of these three contending parties to the property in dispute. This we shall now proceed to do.
Prior to the 25th day of June, 1889, the defendant Philip Tischler was the owner of the south 60 feet of lot 8, in block 32, old numbers, of the city of Jacksonville, and on that date Elizabeth A. Henderson and Philip Tischler made and executed a certain instrument in writing, which is as follows:
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