Thomas v. Burke

• Decision Date: 31 January 1941
• Citation: 200 So. 69,146 Fla. 5
• Court: Florida Supreme Court
• Parties: THOMAS v. BURKE et ux.

200 So. 69

146 Fla. 5

THOMAS v. BURKE et ux.

Florida Supreme Court, Division A.

January 31, 1941

Bill by Fred C. Thomas as surviving member of the firm of Furst &amp Thomas, a partnership, lately composed of Fred G. Thomas and Frank E. Furst against Michael C. Burke and Wife, Cassie Burke, seeking discovery as to how each of three parcels of realty conveyed to defendant wife by a third party at time defendant husband was insolvent was paid for. From a decree dismissing the bill, the plaintiff appeals.

Reversed and remanded. Appeal from Circuit Court, Walton County; L. L. Fabisinski, judge.

COUNSEL

James N. Daniel, of Chipley, for appellant.

D Stuart Gillis, of DeFuniak Springs, for appellees.

OPINION

BUFORD Justice.

In this case appellant filed bill seeking discovery in which it was alleged in effect that plaintiff held a judgment against Michael C. Burke; that Burke was insolvent and had been so for a period of time; that after Burke contracted the obligation which was the basis of the judgment and while he was insolvent, his wife Cassie Burke acquired deeds conveying to her three pieces of property. The bill alleged that at the time the property was purchased Cassie Burke was earning no money and that Michael C. Burke was earning money. The bill did not allege that the land was bought with Michael C Burke's money; nor did it allege that Cassie Burke did not pay the consideration for the land from her separate property. The bill prayed discovery as to how each parcel of land was paid for. We do not comment on the sufficiency of the bill of complaint, as its sufficiency is not challenged here. Plaintiff filed interrogatories addressed to Michael C Burke and Cassie Burke requiring them to answer showing how and with whose money each of the parcels of land was paid for.

Defendants filed an answer in which they admitted the allegations of the bill of complaint and averred that:

'These defendants further answering paragraph 6 say that the defendant Cassie Burke mortgaged the land purchased from the said J. L. Bell for the purpose of securing a part of the purchase price thereof, of which there is a balance of approximately the sum of $250 yet unpaid, and that the said Cassie Burke still owes the sum of approximately $125 on the mortgage upon the property purchased from E. S. Burke and wife, and that there is still due and unpaid the sum of $250 upon the purchase price of the land purchased from Walton Land & Timber Company.'

They by apt words made the answers to interrogatories a part of the answer as though incorporated therein.

The answers to interrogatories taken with the averments to the answer are to the effect that for deed from J. L. Bell and wife Cassie Burke agreed to pay $550 and that she has paid a large part of the purchase price with her own money which was given to her by her mother, Mrs. Mary F. Edgar; that for the deed from E. S. Burke and wife Cassie Burke assumed to pay the balance on a mortgage then outstanding against that land and that she had paid all but $125; that the consideration paid for the deed from Walton Land & Timber Company to Cassie Burke was furnished by Southern Lumber Company to whom she sold the timber on the land; and that she still owes the sum of $250 to Walton Land & Timber Company; that Michael C. Burke furnished no money to pay for the lands.

On final hearing the court decreed:

'This cause came on for final hearing, and was argued by counsel and thereupon, upon consideration thereof, it is considered by the court that the defendants have, by the interrogatories answered and made a part of their answer, sufficiently overcome the presumption that the property referred to in the bill of complaint was purchased with funds furnished by the husband, as to require rebuttal testimony upon the part of the plaintiff to disprove the truth of such answers to interrogatories, and plaintiff having failed to rebut such testimony, the equities are with the defendants, and it is therefore Ordered, that the bill of complaint be, and the same is hereby dismissed, and it is further Ordered that the defendants do have and recover of and from Fred C. Thomas, plaintiff herein, their costs incurred in the defense of this suit, now taxed in the sum of $----- and that execution issue therefor.'

On consideration of motion for rehearing the court made the following order:

'It is true that the answers to interrogatories may not be considered as evidence for the defendants, and that the answer, even though under oath, under present practice, is merely a pleading, and not evidence.

'But the situation here presented is, that the plaintiff has alleged in his bill that while the husband was insolvent, the wife took title to certain property through conveyances from third parties. Aided by a presumption, this alone might have put the defendants to proof that the husband did not furnish the consideration for the conveyances. But the bill must be considered in the light of the discovery obtained through the interrogatories, and the answers to these interrogatories,...