Whetstone v. Coslick

• Decision Date: 09 November 1934
• Citation: 117 Fla. 203,157 So. 666
• Parties: WHETSTONE et al. v. COSLICK et al.
• Court: Florida Supreme Court

157 So. 666

117 Fla. 203

WHETSTONE et al. v. COSLICK et al.

Florida Supreme Court, Division B.

November 9, 1934

Rehearing Denied Dec. 12, 1934.

Bill by George M. Whetstone and another against Anna P. Coslick and husband. From a decree dismissing the bill, complainants appeal.

Reversed with directions. Appeal from Circuit Court Pinellas County; John U. Bird, judge.

COUNSEL

Huffaker & Edwards, of Bartow, for appellants.

Byron M. Skelton and Wilbur C. Stone, both of St. Petersburg, for appellees.

OPINION

BUFORD Justice.

The appeal here is from a final decree after testimony taken dismissing the bill of complaint.

On May 19, 1925, Mrs. R. G. Porter entered into a certain land sales contract with one Gallemore, and on June 3, June 30, and July 3, 1925, Mrs. Porter entered into like contracts in connection with the sale of certain other lots to one Whetstone. Gallemore and Whetstone are appellants here.

Gallemore and Whetstone each paid large sums of money on the respective contracts between the dates thereof and the 1st of April 1926. In March, 1926, both Gallemore and Whetstone discontinued payments on their respective contracts because of the alleged breach thereof by Mrs. Porter. Afterwards they filed suits against her on account of such alleged breach of contract.

On April 1, 1926, the record shows that each of the said contract holders was by reason of such breach on the part of Mrs. Porter the creditor of Mrs. Porter each in the respective sum which he had paid to her under the contract. And it, thereupon, became her legal duty to repay to each the sum which he had paid over to her, and each was her creditor in the sum of the amount paid up to that time. The existence of this condition is established by a judgment in favor of Gallemore and a judgment in favor of Whetstone, the records of which are included in the record here. Each sued Mrs Porter and each recovered judgment against her dated November 25, 1927. The suits were filed against Mrs. A. G. Coslick, formerly Mrs. A. G. Porter, joined by her husband, George M. Coslick.

At the time the contracts were executed Mrs. Porter was unmarried. Mrs. Porter married Mr. Coslick on June 2, 1926. At the thim of her marriage, and prior thereto, Mrs. Porter was the owner of a certain parcel of land. On November 14, 1926, while, as is shown by the record of the judgments herein, she was indebted to Gallemore and to Whetstone, she, joined by her husband, conveyed that certain parcel of land to one Mary McDonough, and as consideration for such deed of conveyance Mary McDonough conveyed a certain tract of land described as follows: 'The Northwest Quarter (NW1/4) of the Southwest Quarter (SW1/4) of Section Ten (10), Township Thirty (30) Range, Fifteen (15) less a tract beginning at the Southwest corner of said described land, and run North Six Hundred (600') feet, thence East Six Hundred Sixty (660') feet thence South Six Hundred (600') feet thence West Six Hundred Sixty (660') feet to point of beginning,' to Annie P. Coslick, who is the same person as Mrs. A. G. Porter, and Mrs. A. G. Coslick, and her husband. She is described throughout the pleading interchangeably as Mrs. A. G. Coslick, Mrs. A. G. Porter, and Annie P. Coslick.

The record shows that while the deed was made to Anna P. Coslick and her husband, George M. Coslick, the conveyance of the property belonging to Anna P. Coslick to Mary McDonough was the sole and entire consideration for the conveyance of the abovedescribed property to Anna P. Coslick and George M. Coslick, and that George M. Coslick contributed nothing whatever toward the consideration passing for this conveyance. It is clear from the record that the conveyance was so made to Anna P. Coslick and her husband, George M. Coslick, for the purpose of creating an estate by the entireties which could not be reached by the creditors of Anna P. Coslick. The record further shows that prior to the marriage of Mrs. Porter to Mr. Coslick an agreement was entered into between them by which it was agreed that each should so convey their respective real estate after marriage that it would all be vested in them as estates by the entireties, but the record further shows that this was a sort of unilateral agreement because Mr. Coslick had no real estate to contribute to this laudible purpose. Therefore, Mrs. Coslick was the sole contributor.

The appellants in 1933, learning of these transactions, filed a creditor's bill for the purpose of procuring a decree adjudicating the title which passed from Mary McDonough to Anna P. Coslick and George M. Coslick to have conveyed the title in trust for the benefit of Anna P. Coslick and to impress the lien of the judgment upon that land.

In view of the former decisions of this court, we think it clear that complainants in the court below, appellants here, were entitled to relief prayed. In the case of McGill v. Cockrell et al., 81 Fla. 463, 88 So. 268, 269, we held that a married woman may be sued at law for breach of her antenuptial contract by joining her husband as defendant, and we also held: 'The antenuptial contract of a married woman is not annulled nor rendered unenforceable by her marriage. Upon the obligation created by contract an action may be brought for a breach of it by her by joining her husband as a defendant, and the judgment, if any is obtained, must be satisfied out of her property.' It will be borne in mind that there is no effort here to annul the conveyance from Mrs. Coslick and her husband to Mary McDonough, but the purpose is to impress the lien upon that property which Mary McDonough conveyed in consideration for the conveyance of the other property to her.

In Weathersbee et ux. v. Dekle, 107 Fla 517, 145 So. 198, 200, we said: 'A 'creditor,' within the meaning and intent of the statute against fraudulent conveyances (section 5771, C. G. L., supra), and one also as to whom a fraudulent conveyance from husband and wife is expressly declared to be void by section 5670, C. G. L., section 3797, R. G. S., when made to avoid the payment of 'any legal debt or claim,' is not necessarily one who has a demand for money which is due, or running to maturity, or who has an existing cause of action. Whoever has a legal claim or demand of a contractual nature in existence at time when an alleged fraudulent conveyance is made, is a 'creditor' within the meaning of the statute against fraudulent conveyances. 12 R. C. L. 492. The holder of a contingent claim is as fully protected by the statute as one that is absolute, and in cases of contingent liability, the liability, whenever happening, relates back to the date when it was originally incurred. Lyon v. Bolling, 9 Ala. 463, 44 Am. Dec. 444; Cook v. Johnson, 12 N. J. Eq. 51, 72 Am. Dec. 381; Sallaske v. Fletcher, 73 Wash. 593, 132 P. 648, 47 L. R. A. (N. S.) 320, Ann. Cas. 1914D, 760; Carr v. Davis, 64 W.Va. 522, 63 S.E. 326, 20 L. R. A. (N. S.) 58, 16 Ann. Cas. 1031; Ames v. Dorroh, 76...