13 Fla. 288 | Fla. | 1869
delivered the opinion of the court.
"W. Ryal Long filed his bill in chancery against J. T. Budd, former sheriff', &c., and ex offieio administrator of the estate of Jackson Kemp, deceased, and Daniel L. Oakley, sheriff of Jefferson county, alleging that on the 25th October, 1863, he purchased for a valuable consideration, through one C. A. Bradley, from one Yalentine Clem, a piece of land near Monticello, described as follows : The south half of an acre of land known as the southwest corner of the southwest quarter of section 19, T. 2, R. 5, N. and East, and also the adjoining block on lot on the south side, containing two hundred feet square, on the east side of the northeast corner of the Monticello eighth of land, containing one and a half acres, more or less. That complainant being then a free person of color, the property was purchased in the name of Bradley for the use of complainant, because under the laws of this State the purchase could not be made in his own name; that the deed of conveyance therefor was duly recorded December 14, 1863, and subsequently Bradley released the said property to the complainant. The deed of Yalentine Clem to Bradley conveys the property to Bradley,
And the bill prays that said judgment may be set aside, or that the levy be discharged on account of the illegality of the attachment, or that the judgment may be satisfied to the extent of the aniount of the said purchase money paid over to Rudd under the order of the court; that complainant’s lands may be declared not subject to the judgment and execution, and that the appellant be enjoined from further proceedings under said judgment and execution against his said lands, and for general relief.
The answer of defendant, Budd, after insisting that there is-no equity in the bill, admits the purchase of the land from Clem, and the payment therefor by complainant as alleged,. but says that the purchase was not made until after the attachment issued in behalf of Kemp had been levied; that the affidavit for the attachment was actually sworn to ; that soon after the said purchase, complainant, who had paid Clem the purchase price of the land, was informed of the levy, and that Bradley by some means recovered for complainant a large sum of the same money he had paid Clem for the lands; that the money was funded in four per cent, certificates of the Confederate States by Bradley, by the consent of all the parties in the proceedings; that the court ordered said certificates to be held by said Budd, as sheriff, until the further order of the court, and meantime the same became worthless, and the court has never made further order in the premises ; that the suit of Kemp vs. Clem was revived after the death of Kemp in the name of defendant, Budd, ex officio administrator; that Clem entered his appearance in the suit in the spring term of 1863 by John M. Smith, his attorney, and also in the fall term, 1864, at which the judg
The complainant filed a general replication.
On January 28, 1869, a final decree was rendered by the court. The decree recites that the “ cause came on for a final hearing upon the bill, answer and other papers filed in said cause.”
(It may be remarked here, that a certified copy of the record and proceedings in the suit of Kemp against Clem was brought up by certiora/)'i, and was used by the appellee upon the argument; but upon examining that record and the proceedings in this case, we cannot find that that record was used or offered upon the hearing in the Circuit Court, and it is therefore not properly a part of the record in this case. Nor do we see that anything contained in it can affect the decision of this cause.)
The decree was in favor of the complainant, declaring that the judgment was not a lien upon the property, and enjoining all further proceeding’s under the execution against the property mentioned in the bill, and awarding costs against the defendant, Budd. From this decree the defendant, Budd, appealed.
1. The appearance of the attorney of the appellee’s vendor in the original action, without exception to the proceedings in ancillary attachment, was a waiver of any irregularities or omissions therein.
2. That appellee was a purchaser pendente lite, the land being subject to the lien created by the levy of the writ of attachment, which in this proceeding was notice to the world.
3. That the refunding and acceptance of the purchase money of the land was virtually a rescisión of the contract in relation to it, rendering all the land conveyed by the vendor’s deed subject to the judgment obtained against him.
4. That the acts and conduct of the vendor and vendee afford at least presumptive evidence of the truth of the alleged fraudulent intention of the vendor, with the cognizance of the vendee, which alone renders the decree erroneous and a proper subject of reversal.
5. That the decree ought to be reversed, so far at least as it enjoins the judgment against that portion of the land levied on under the proceeding in attachment, and binding upon it “ except as to pre-existing liens.”
6. That the title to the land conveyed by Clem to Bradley for the use of Long, never vested in Long, neither in law nor equity—neither under the statute of uses nor bill in chancery, to execute the trust, if any were created by the deed.
I. The appellants, in their brief and argument, insist that there is no equity in the bill; that every right the complainant sets up might be available at law, and that where the law affords an ample and complete remedy, equity will not interfere. This position is generally correct, and it is true that the complainant has stated much in his bill which cannot be available to him either at law or in equity.
It is said, however, that it would be difficult to enumerate all the cases in which the remedy by injunction may be ap
II. But equity will not enjoin a judgment or execution merely on the ground of errors or irregularities in the proceedings on which the judgment was rendered. Dana vs. Fish, 8 Blackford, 407; Redwine vs. Brown, 10 Ga., 311; Reynolds vs. Horrine, 13 B. Mon., 234; 6 Gill, 391. Author- N ities to this point are numerous, that a collateral inquiry into the regularity of proceedings before a court of record will not be allowed, except to show an entire absence of jurisdiction, and that a court of chancery cannot be used to correct errors in proceedings at law, and particularly at the Instance of third parties. See Shottenkirk vs. Wheeler, 3 J. Chy. R., 280; DeReimer vs. DeCantillon, 4 id., 92; French vs. Shotwell, 6 id., 235.
That there are several irregularities and omissions alleged by the complainant to exist in the record in the suit of Kemp against Clem, may be true, and also, it may be that the sup
These are irregularities which might have been taken advantage of by the defendant in that suit, either by motion or writ of error, but they do not affect the jurisdiction of the court over the person of the defendant, or the subject matter of the suit.
The writ of attachment was doubtless regular on its face, and until it was dismissed or the levy under it vacated, third persons are bound to take notice of the levy.
, The summons was duly served on the defendant, Clem, at the suit of Kemp. The suit was subsequently proceeded in and judgment taken by Budd as administrator of Kemp, deceased. The defendant permitted this proceeding without' objection, (and certainly no other person could object.) The court was competent to protect itself, and is presumed to have acted upon what was before it, and to have acted correctly, until its proceedings are reversed or set aside. .
III. The levy of the attachment was made upon one half acre of the land described in the complainant’s bill. The complainant had purchased, and Clem had conveyed to him through Bradley one acre in addition, which the sheriff failed to levy upon under the attachment, but which is now levied upon by virtue of an execution as the property of the defendent, Clem, and it is even claimed that it is bound by the attachment because it “ should have been attached,” and the omission to attach it was an oversight or mistake. There is no charge of fraud in the purchase of the property by the complainant, nor can the doctrine of Us pendens be well carried to the extent that a levy of one of the parcels of land by attachment affects any property other than that seized. The lien attached only by the levy, and is limited by the levy. That there may have been a fraud intended to be perpetrated upon creditors by this sale, is granted, but there is no fraud alleged or proved, and it is asking too much to insist that fraud may be implied in a case like this. On the
IV. It is insisted by the appellant that because the complainant was a “ free person of color,” he was, under the laws of this State in 1863, incapable of taking title to the property. Indeed, the complainant considered himself incapable, as he says, oí taking the title in himself, and therefore bought and paid for the property, taking title in the name of Bradley, but for his use.
Under the statute of uses, the property conveyed vested immediately on the conveyance being executed in the cesind que use, unless the latter was prohibited by some law from taking property. We are not referred to any law of this State which prohibited free persons of color from taking and holding property in their own names, nor are we aware of the existence of any such law. It is true, there was a law requiring free negroes and mulattoes over twelve years of age to select guardians, and the guardian so selected must have been approved by the Judge of Probate, and was empowered to sue for any money due to the negro, and had the same control over such persons as was possessed by guardians in other cases. Act of January 8th, 1848. In 1866, it was enacted that every free negro over- twelve years old, who should fail to have a guardian, should be fined and committed to jail until the fine should be paid; and further, that it should not be lawful for any person “ to buy of or sell to any free negro or mulatto in this State without the written consent of the guardian,” and any person violating this provision was subject to a fine not less than one hundred or more than five hundred dollars.
These acts recognized the right of free persons of color to purchase and own property, to earn money, and to recover it through the courts. It is implied that they could not sue in their own names, but elsewhere it is held by the courts that they may be sued in their proper names without a guardian. Davis vs. Fitchett, 5 Fla., 260. Hor does the common law
In the conveyance to the complainant, Long, by Bradley, the latter declares that he held the property purchased with the money of Long as his guardian. There is no issue in this case as to whether he was properly appointed a guardian under the law of the State, and for aught that appears, Long may have been under twenty-one years of age at the time of the purchase. Certain it is that Long’s money paid for the land. It is difficult to find any principle of equity or good conscience which can justify the subjection of property thus conveyed to a free colored person for a valuable consideration, paid by himself in good faith, to the payment of the debts of his grantor, merely because he was such a person.
Is it true that the money earned by a free colored person could purchase nothing ? that such money was not a good consideration for a conveyance to him or to his use, or that the conveyance was void ? I cannot consent to this, nor do I find a hint toward it in the reported decisions of our courts. The only importance, in my opinion, to be attached to the statutes in question, is that they treat this class of persons as under similar disabilities with infants, and these laws are rather designed for their protection, than to be used as traps and snares for despoiling them.
Y. It is insisted that the refunding and acceptance of the purchase money of the land was virtually a x’escision of the
This case was presented and argued as upon the bill and answer, there having been no testimony taken, and there is nothing else in. the record which we can consider, the exhibits being treated as part of the pleadings. The half of one acre of land, which was seized by virtue of the attachment referred to in the pleadings, was from the time of that levy liable to be levied upon and sold to satisfy the judgment recovered in the suit of Kemp vs. Clem. The other land, described in the bill as having been levied upon by the execution under that judgment, was not subject to suchlevy, and the complainant is entitled to an injunction restraining its sale.
The decree of the Circuit Court, as to the one half acre of land levied upon by the writ of attachment, is reversed; and as to the residue, the decree is affirmed. Each party to pay one-half the costs incurred upon this appeal.