First National Bank v. Hirschkowitz, 46 Fla. 588

First National Bank v. Hirschkowitz

46 Fla. 588 | Fla. | 1903

Shackurrord, J.

(after stating the facts.) — It seems advisable to discuss all these errors together, since they all present for consideration the same question, whether the filing of a bill by one complainant against a married woman and the appointing of a receiver under such bill, by which the property of said married woman is taken into the hands of the court, gives such complainant a prior lien upon the assets over all other creditors who may subsequently seek to subject such assets, or whether all creditors have such *594an interest in the assets that no creditor can acquire a preference therein by priority in bringing suit.

We regret that counsel for the appellees have failed to file a brief in this court. See Chamberlin v. Lesley, 39 Fla. 452, 22 South. Rep. 736. However, we have been materially aided in our investigations and in reaching a conclusion by the very full and able brief of the counsel for appellants.

In an unbroken line of decisions, beginning with Lewis v. Yale, 4 Fla. 418, down to the present time, this court has held that “a femme covert is not competent to enter into contracts so as to give a personal remedy against her.” As was said in Dollner, Potter & Co. v. Snow, 16 Fla. 86, “at common law, the promissory note of a married woman is void. The constitution and statute of this State make no change in this respect. Neither at law nor in equity can she bind herself so as to authorize a personal judgment against her.”

Under the rule laid down in these decisions appellants could not have proceeded at law against the said married woman, Dora Hirschkowitz, and hence could not have reduced their claims to judgment. Also see Crawford v. Peder, 34 Fla. 397, 16 South. Rep. 287.

It is also the settled law of this State that “where a married woman carries on business in her own name, having property employed in such business, and purchases goods upon her sole credit for the purpose of such business, her separate property -may be subjected in equity to the payment of claims for money due for such purchases.” Blumer v. Pollak, 18 Fla. 707. Also see Staley v. Hamilton, 19 Fla. 275; Garvin v. Watkins, 29 Fla. 151, 10 South. Rep. 818; Halle v. Einstein, 34 Fla. 589, 16 South. Rep. 554. In Crawford v. Gamble, 22 Fla. 487, it was held that “merchandise purchased by a married woman who is conducting a mercantile business in her own name is her separate statutory property.”

It follows that appellants had the right to file a bill in equity to subject the separate statutory property of the said *595Dora Hirschkowitz to sale for the satisfaction of their claims. Section 2, art. XI, constitution of 1885. In fact, no other course was left open to them. . Thus far the law is clear. However, it still remains to be settled what right or advantage, if any, appellants acquired over the other creditors by pursuing this course. Did they by the filing of their bills and the appointment of a receiver, by which the property of said married woman was taken into the custody of the court, acquire a prior lien upon said property?

It seems to have been contended by the counsel for the intervening.creditors that the bills filed by appellants were creditors’ bills, or analogous to such bills, that in such bills the rule that equality is equity prevails and requires that the funds brought into court by the bills shall be prorated among all the defendants’ creditors who may come in; also that while in such cases an individual creditor may acquire a preference by the filing of a bill, yet he can only obtain such preference after he has reduced his claim to judgment. We can not assent to this. We are of the opinion that the bills filed by appellants were neither creditor’s bills, nor bills analogous to creditor’s bills', but rather equitable actions seeking to recover debts against the separate statutory property of a married woman. See Johnson v. Gallagher, 3 De G. F. & J. 494, at 519, where the following language is used: “When a man contracts a debt, both his person and his property are by law liable to the payment of it. A court of equity, having created the separate estate, has enabled married women to contract debts in respect of it. Her person can not be made liable either at law or in equity, but in equity her property may. This court, therefore, as I conceive, gives execution against the property just as a court of law gives execution against the property of other debtors.” Also see Hulme v. Tenant, 1 Brown’s Ch. 16, at 21, where the Lord Chancellor uses the following language: “I have no doubt about the principle, that, if a court of equity says a femme covert may have a separate estate, the court will bind her to the whole extent, as to *596making that estate liable to her own engagements; as for instance, for payment of debts, etc.” As is well said by counsel for appellants, “none of the conditions which exist in case of a creditor’s bill need exist. It is sui generis, being a suit in equity, on the same plane' as a suit at law against a person sui juris. The bill in such case is the bringing of a suit, and the appointment of a receiver is an equitable attachment, and devotes the property taken in charge to the payment of the creditor’s claim, just as a levy of an execution or attachment at law would do.”

To hold that the bills filed by the appellants were ordinary creditor’s bills, or bills analogous thereto-and governed by the same rules, would be equivalent to denying appellants any remedy. They could not reduce their claims to judgment prior to the filing of their bills for the reason that the defendent debtor was a married woman, and, for a like reason they could not proceed by attachment and thereby acquire a priority. Being forced to go into equity to obtain any relief, why should they not be held by their vigilance, being first in point of time, to have acquired a first lien upon the goods of the defendant debtor? But for the fact that she was a married woman they could have proceeded at law by attachment and thereby acquired a first lien. Stockton v. The National Bank of Jacksonville, 45 Fla. 590, 34 South. Rep. —. Why should the rule be different in equity? Why does not the maxim, qui prior est temore potior est jure, apply?

It will be observed that appellants did not sue in behalf of all the creditors of the debtor or of such as might come in and contribute to the expenses of the litigation. As was said in Sage v. Memphis & L. R. R. Co., 125 U. S. 361, 8 Sup. Ct. Rep. 887, at 376, “he was not bound to pursue that course. It was his privilege, under the law to sue for his own benefit, and it was within the power of the court, for his protection as a judgment creditor, to place the property of the debtor company in the hands of a receiver, for administration under its orders.” Since no judgment could *597have been first obtained in this case by appellants, as we have seen, we know of no reason why the above quoted language is not applicable to this case.

The case of Kelly v. Turner, 74 Ala. 513, seems to be directly in point. On page 523 the following language is used: “The creditor of a married woman, resorting to a court of equity to charge her equitable separate estate, must, of necessity, in the bill describe the property which it is sought to subject. Ravisies v. Stoddard, 32 Ala. 599. It is upon this property only the decree can operate; for the contract is not of personal obligation, and a decree affecting or binding personally the married woman can not be rendered. In this respect the suit has some of the characteristics of a proceeding in rem; though in form and essential elements, it is a suit inter partes. A lis pendens is created by the institution of the suit, operative against all persons coming in subsequently, by purchase or otherwise. It creates a specific lien, if successfully prosecuted to final decree, the decree taking effect, by relation, from the day of the service of the summons to answer. The vigilance of the creditor first instituting suit, and prosecuting it with diligence, entitles him to priority, of which other creditors, less vigilant, who have 'loitered on the way/ have no just reason to complain.”

To the same effect is Hines v. Duncan, 79 Ala. 112. Also see Brooks v. Gibson, 7 Lea, 27l; Mathews v. Mobile Mut. Ins. Co., 75 Ala. 85; 5 A. & E. Ency. of Pl. & Pr. 605-609; Tilford v. Burnham, 7 Dana, 109; Corning v. White, 2 Paige, 567; Freedman’s Sav. & Trust Co. v. Earle, 110 U. S. 710, 4 Sup. Ct. Rep. 226. Also see Parego v. Bonesteel, 5 Biss. 66, S. C. Fed. Cas. No. 10,976, where the following language is used: “After the appointment of a receiver under a creditor’s bill another creditor can acquire no rights by levying an attachment upon property of the judgment creditor. Where the court has obtained jurisdiction under a creditor’s bill it will protect the creditor in following up his rights.” The following authorities will also *598prove instructive upon this point: First National Bank of Sioux City v. Gage, 93 Ill. 172, 175; Albany City Bank v. Schermerhorn, Clark’s Chan. Rep. 297; Davenport v. Kelly, 42 N. Y. 193; Lansing v. Easton, 7 Paige, 365; 20 Am. & Eng. Ency. of Law, 128. While, as we have already said, we are of the opinion that the bills filed by appellants were neither creditor’s bills nor bills analogous thereto, we know of no reason why the principle enunciated in some of the foregoing authorities in treating of creditor’s bill should not apply here; that is, that the filing of a bill by a creditor and the appointment of a receiver, by whom the possession of the property is taken, gives such creditor a prior lien over other creditors. In the light of the authorities we must hold that appellants were entitled to a first lien upon the funds in the hands of the receiver. It follows, therefore, that all the errors are well assigned and that the decree must be reversed, with directions to sustain the demurrers of appellants to the petitions of the intervening creditors, and for such further proceedings as may be in consonance with equity practice and not inconsistent with this opinion; the appellees to pay the costs of this appeal.