61 Fla. 611 | Fla. | 1911
The record before us shows that on the 24th day of April, 1909, the appellee filed an amended bill in the circuit court of Hillsborough county against the appellants. This record does not set forth the original bill or its contents.
The amended bill is in substance as follows: That on the 8th of December, 1907, J. W. Frazier, the complainant, was duly elected trustee in bankruptcy of the estate of J. W. Hobbs and duly qualified as such; that during April, 1907, said J. W. Hobbs was engaged in the saloon business at. Plant City, Florida, and was seized and possessed
. The amended bill also alleges that J. W. Hobbs and Nancy E. Hobbs are utterly insolvent; that said property is rented at about one hundred dollars per month; that Nancy E. Hobbs is collecting the rents, issues and profits thereof, and is concealing and disposing of the same, and that in order to protect the rights and interests of com
The amended bill, among other things, prays for an answer, not under oath, that the title to said property be adjudicated to be in J. W. Hobbs and his estate in bankruptcy; that any alleged transfer of the same be declared fraudulent and void as to the complainant, for a receiver, and for general relief.
The defendants demurred to the amended bill on eight grounds, in substance as follows:
1st. The amended bill is not an amendment of the original bill, but presents an entirely different cause of action, foreign to that of the original bill.
2nd. Does not show in whose behalf or interest it is filed.
3rd. Does not show that J. W. Hobbs or Haney E. Hobbs is indebted to any one.
4th. Does not show that the alleged creditors were not fully satisfied for all claims against defendants.
5th. Does not show that J. W. Hobbs has not paid or satisfied all his creditors.
6th. Does not show that Frazier, trustee, is authorized and empowered by the creditors of Hobbs to sue in this manner on their behalf severally.
7th. Does not show that J. W. Hobbs has not been discharged in bankruptcy and freed from liability to his creditors.
8th. And for other causes apparent on.the bill.
This demurrer was overruled and defendants permitted to answer. J. W. Hobbs answered the bill admitting that Frazier was elected and had qualified as trustee in bank-' ruptcy; that the claims set forth in the bill are cognizable in the District Court of the United States, and not in the
Nancy E. Hobbs answered the bill, setting up that she was the owner in fee simple and is in possession of the real estate described in the bill, and alleges that said real estate is not the property of the defendant J. W. Hobbs,
The first assignment of error is based on the overruling of the demurrer to the amended bill. The first ground of demurrer presented is that the amended bill presents “a cause of action entirely different and foreign to the cause of action alleged in the original bill.” As we have stated the original bill is not contained in the record before us. It is stated in the brief of appellant that the original bill was for a partition of the real estate, but inasmuch as said bill is not contained in the record we are now considering, we are not advised that it is our duty to go outside of the record before us to determine the point raised by the demurrer; for such a determination would involve a consideration of both bills, one of them being no part of the record before us. No authority is shown in support of such a course of procedure.
The next contentipn presented by the demurrer is that
The second assignment of error assails the final decree because therein the court asserted jurisdiction of the subject-matter and the parties. The contention in this assignment is that the National Bankruptcy Laws give exclusive
The third, fourth, fifth, sixth, seventh and eighth assignments question the correctness of the decree in finding the equities for the complainant, in finding that the purchase price of the property described in the bill was furnished by J. W. Hobbs, that the transfer from J. W. Hobbs to Nancy E. Hobbs was fraudulent, null and void, and for the purpose of defrauding the creditors of J. W. Hobbs; that J. W. Hobbs had an equitable title in the property; that the deed to Nancy E. Hobbs be set aside and vacated, as to the trustee.
In the case of Kahn v. Weinlander, 39 Fla., 210, 22 South. Rep., 653, this court held that in a contest between creditors of an insolvent debtor and the latter’s wife over real estate purchased in her name during the husband’s indebtedness, there must be clear proof that the purchase was made with the wife’s separate funds, otherwise the presumption is that it was through means furnished by her husband.” See also Claflin v. Ambrose, 37 Fla., 78, 19 South. Rep., 628; McKeown v. Allen, 37 Fla., 490, 20 South. Rep., 556. In the case of American Freehold Land & Mortgage Co. v. Maxwell, 39 Fla., 489, 22 South. Rep., 751, it is held that “a husband’s declarations made subsequent to a conveyance of lands from him to his wife, to the effect that the lands so conveyed were purchased by him wit it money or property of the wife are not sufficient to establish a purchase with funds belonging to the separate estate of the wife. In the case of Warner v. Watson, 35 Fla., 402,
With reference to the execution of the deed of the land in question to J. W. Hobbs, G. B. Wells testified that he resided at Plant City, Hillsborough County, Florida; that he remembered the transaction as to the execution of the deed to the property in litigation; that in the Spring of 1907, H. H. Johnson and his wife came to his office to make a deed to property in Plant City; that they gave him the description, and that he asked Johnson and his wife to whom to make the deed as grantee. They said they did not remember, but they had sold it to Mr. Hobbs, and so without instruction from Mr. Hobbs he placed his name in the deed as grantee. The deed was executed before him as notary public and delivered to him to be delivered to Mr. Hobbs. It staid in his office some time. Mr. Hobbs went into bankruptcy that year on November 22nd. Witness was his counsel. Before the bankruptcy proceedings witness asked him about the property in litigation and Hobbs told him his wife was to be the grantee. Hobbs instructed witness to place her name as grantee in the deed. Witness told him his (Hobbs’) name had been placed in the deed as grantee, not knowing to whom he wanted in the deed as grantee. Witness then wrote in the deed the name of Nancy E. Hobbs, wife of J. W. Hobbs. When the deed was executed witness notified Hobbs of its existence two or three days after its execution, and that it was to be delivered to him; that his name was in it as grantee. He
■ Mr. Goodwin testified that be was vice president of tbe Ullman Company engaged in tbe whiskey business; that be knew J. W. Hobbs; that in May 1907 be bad a talk with J. W. Hobbs about bis assets; that Hobbs enumerated this piece of property as being bis own — said it was worth about $5000.00; that relying on this piece of property be extended a credit of between $800.00 and $900.00; that bis firm was still a creditor of J. W. Hobbs.
Tbe testimony taken in tbe bankruptcy case ivas by consent filed in this case. From tbe testimony of Mr. Hobbs it appears that when be married Mrs. Hobbs she bad twenty acres of land worth about $400.00. This property, with some of bis own, they swapped for another piece about half a mile from Plant City. They sold this property for $1400.00, of which amount be owed bis wife $400.00. Tbe title to this second piece of property was taken in bis wife’s name. Hobbs says be turned tbe $400.00 over to bis wife; she spent part of it, and bought nine head of cattle, that be subsequently sold for $90.00. He does not know bow much she put in bank, $75.00 or $135.00, be does not remember which. She kept tbe balance in tbe bouse. He advised her to put her money into a piece of property in tbe bottom. Porter said be would go half on it. Witness and Porter bought it for $2500. cash; Acme Brewing Company have a mortgage for $1000 on it; paid tbe money to H. H. Johnson; got part of tbe money from bis wife, $500 in cash; tbe title to the property was taken in bis wife’s name and Porter’s; they paid $500 in cash and gave a note for tbe balance; bis wife’s name
Mrs. J. W. Hobbs testified that at the time of her marriage she had no separate property. After her marriage she inherited from her grandfather some land and cattle. She says there were about ten head of cattle, and some and near Plant City. She exchanged the land she got from her grandfather with a Mr. Hawkins. She sold this land to a Mr. Riggns, does not know exactly what she got for it — about $1200 or $1300. She says she invested this money in property in Plant City, known as the Bottoms.
Mr. Porter was asked whether he and Hobbs ever bought
Mr. Victor Pough testified that he was a salesman for a wholesale liquor house; that he knew J. W. Hobbs; that he was familiar with the real estate in the Bottoms of Plant City, known as the Hobbs and Porter property; that he first saw the property about a year before he testified; that a liquor business was conducted in the building; that Hobbs told him that he, Hobbs, and Porter were interested in the property; that he afterwards told Mm it was some of his wife’s property; that relying on his statement that he was interested in the property, he sold him some goods, but not after that; that Hobbs said the property was worth about three or four thousand dollars. The foregoing is a summary of the evidence on which the court acted.
It does not appear from the record that the deed from Johnson and wife to J. W. Hobbs, made in April 1907, was ever recorded, or that any one except the parties to it and Mr. Wells knew its contents. It is entirely prob
The decree appealed from is affirmed.