Eldridge, Dunham & Co. v. Post

| Fla. | Jan 15, 1884

The Chief Justice delivered the opinion of the court.

This is a controversy between creditors.

X). C. Wilson, Jr., on August 1, 1873, assigned by an indenture, not witnessed or recorded, to appellants, so much of the estate of his father, then deceased, as would amount. to two thousand dollars, to secure their claim against him amounting to $1,8 L6.85. The estate was principally real property, in which D. C. Wilson, Jr. had, under the will ■of his father, a vested remainder in fee, to vest in possession upon the death of his mother. His mother died in November, 1880. This assignment was not recorded.

Post & Hobby recovered a judgment against D. C. Wilson, Jr., in the Circuit Court in Leon county, where the land was situated, on the 5th of November, 1875, for $487.-75 and costs.

Appellants recovered a j udgment against said D. C. Wilson, Jr., in the same court on February 4,1878, for $2,026.-76 and costs.

The lands were • sold under proceedings for partition .among the heirs and the part of the proceeds in money going to D. C. W., Jr., were deposited in bank under the direction of the court.

Appellants, soon after the death of the mother of the Judgment debtor, filed their bill to subject his interest in the estate to the payment 'of their claim by virtue of the assignment of August 1,1873. .Post, survivoy of Post & Hobby, intervened by petition, after the partition sale,claiming priority by virtue of the lien of the judgment of Post & Hobby, which 'was recovered prior to the judgment of ap■pellants. This judgment of Post & Hobby was a lien upon the vested interest of the judgment debtor upon its rendition, under the statute, and was therefore entitled to priority of payment out of the proceeds of the sale of the real estate. 1 Story’s Eq. Jur., 523 ; Earvin vs. Earvin, 1 Rich., S. C., 62.

The indenture by which D. C. Wilson, Jr., assigned his interest in the property was not recorded so as to be a ■chai’ge upon the real estate as against creditors or subsequent purchasers without notice. The statute says: “No conveyance, transfer or mortgage of real property, or of any interest therein, shall be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration aud without notice, unless the same shall be recorded in the office assigned bylaw for that purpose.” McClellan’s Dig., 215, §6.

It appears that Post & Hobby had no notice of this lien of theappellants prior to the recovery of their judgment. The arbitrary-provision of the statute forbids the courts of law or equity giving vitality to that assignment as against the creditor or asubsequent purchaser tor value without notice of the lien. Massey vs. Hubbard, 18 Fla., 688" court="Fla." date_filed="1882-01-15" href="https://app.midpage.ai/document/massey-v-hubbard-4913643?utm_source=webapp" opinion_id="4913643">18 Fla., 688, 694; Carr vs. Thomas, Id., 736, 750; Ginteau vs. Wisely, 47 Ill., 433" court="Ill." date_filed="1868-06-15" href="https://app.midpage.ai/document/guiteau-v-wisely-6953004?utm_source=webapp" opinion_id="6953004">47 Ill., 433; McFadden vs. Worthington, 45 Ill., 362" court="Ill." date_filed="1867-09-15" href="https://app.midpage.ai/document/mcfadden-v-worthington-6952703?utm_source=webapp" opinion_id="6952703">45 Ill., 362; Massey vs. Westcott, 40 Ill., 160" court="Ill." date_filed="1866-04-15" href="https://app.midpage.ai/document/massey-v-westcott-6951966?utm_source=webapp" opinion_id="6951966">40 Ill., 160; Martin vs. Dryden, 1 Gilman, 187; DeVendell vs. Hamilton, 27 Ala., 156" court="Ala." date_filed="1855-06-15" href="https://app.midpage.ai/document/de-vendell-v-doe-ex-dem-hamilton-6505579?utm_source=webapp" opinion_id="6505579">27 Ala., 156.

The second proposition of appellants is that by reason of their diligence in filing their bill, the discovery and bringing into court the defendant’s assets, they are entitled to priority over all other creditors to the full extent of their claim with all costs and expenses and a reasonable solicitor’s fee for bringing the fund into court.

That is the rule as adopted by courts of equity upon bills filed by judgment creditors to discover aud reach assets not subject to execution at law. The judgment creditor who first institutes a suit and serves his subpoena, or otherwise entitles himself to the law of Us pendens, obtains a lien upon the assets which his bill seeks to reach, and upon obtaining a decree he is entitled to the fruits of his diligence. But if property be subject to execution at law so that the plaintiff can levy his writ thereon, it is not, before it vests in the receiver; so bound by a bill that it cannot be levied on and sold under an execution issued by another creditor. Freeman on Executions, §434, and notes.

Here the property was subject to the execution of appellants and of Post & Hobby to the extent of the interest of the judgment debtor before the partition sale; and after the sale the proceeds were applicable to the payment of the judgments in the order of their priority, as we have before shown. There was no discovery of property not liable to execution at law, in respect to the real estate from which this fund was in great part produced.

The lien of the judgment of Post & Hobby upon the real estate, having priority of the judgment of the appellants, it is entitled to preference of payment out of the proceeds of the sale, the fund not having been discovered by means or through the influence of the complainants’ bill as a creditor’s bill.

The creditors, Post & Hobby, intervened in the proceedings for a partition by petition. “ That this is the usual and proper mode of bringing forward the demands of such creditors having a right to come into equity for satisfaction out of the fund, is well settled.” Garvin vs. Garvin, 1 Rich., 60, citing Simons vs. Simons, Harper’s S. C. Eq., 256.

The decree of the Circuit Court is affirmed.