J. I. Kelley Co. v. Pollock & Bernheimer

57 Fla. 459 | Fla. | 1909

Shackleford, J.

This is a suit in chancery instituted by the appellees against the appellant, which resulted in a final decree in favor of tíáe appellees from which the appellant has entered its appeal to the present term of this court. Very briefly stated, the appellees in their amended -bill allege that each one of the -complainants is a judgment creditor of the Jernigan Lumber Company, a corporation, the respective amounts and dates of such judgments being set forth, that executions had issued thereon and been returned' nulla bona, and that such judgments still remain unsatisfied; that on the day of July, 1905, the Jernigan Lumber Company, being the debtor of complainants, proceeded by certain written conveyances to transfer and convey to the .appellant, which purported to be a corporation but which had no corporate existence at that time, all of the property owned by such Jernigan Lumber Company, a detailed description of which is set forth; that the complainants are advised and believe and so charge that the appellant was not incorporated until the 12th day of August, 1905, on which day letters patent issued to it; that the majority of -the shares of stock in such appellant corporation was subscribed for by individual stockholders and directors of the Jernigan Lumber Company, who are named, such shares having been paid for by the conveyance of property of such corporation to the appellant; that the only consideration paid by the appellant for the transfer and conveyance to it of all of the property of the Jernigan Lumber Company was the issuance of shares, of stock in such appellant corporation to the individual stockholders and directors of the Jernigan Lumber Company; that'at the time of the conveyance to the appellant of the property of the Jernigan Lumber Company it was the understanding that the appellant would pay certain mortgage indebtedness of such Jernigan Lumber Company but that no provision was made for the payment of the indebtedness due to the complainants, although the complainants are advised and believe and so charge that it was the understanding of the remaining stockholders of the Jernigan Lumber Company, “and not only was it the understanding, but that it was the agreement that all the indebtedness of the Jernigan Lumber Company, including the indebtedness of your complainants, would be paid by” the appellant; that the indebtedness due to each of the complainants was then in existence and some of’the complainants had reduced their claims to judgment; that the value of the property owned by the Jernigan Lumber Company and so conveyed by it to the appellant amounted to considerably more than 'the mortgaged indebtedness assumed by the appellant; that the appellant “was not an innocent purchaser without notice of the indebtedness of the said Jernigan Lumber Company and of the fact that the Jernig-an Lumber Company after making this conveyance was insolvent and had no means with which to pay its indebtedness, because the said J. I. Kelley Company is composed of the stockholders and directors of the said Jernigan Lumber Company, and that it, the said J. I. Kelley Company, is holding this, as your complainants are advised and believe and therefore aver, in trust for the payment of your complainants’ indebtedness under the law, they having received this land and personal property'with these obligations resting upon it, and not only so, but as your complainants are advised and believe and therefore aver, it being the express understanding and agreement at the time of the conveyance that all the indebtedness of the Jernigan Lumber Company should be paid by the said The J. I. Kelley Company.”

The prayers of the bill are that the property so conveyed by the Jernigan Lumber Company to the appellant may be decreed to be liable for the payment of the several judgments of the complainants and that the same, or so much thereof as may be necessary, may be sold under the direction of the court for such purpose, and for general relief.

To this amended bill the appellant interposed a demurrer, thereby questioning the equity, of the bill, which demurrer was overruled by the court and upon this ruling is based the first assignment. This demurrer contains seven grounds, -but we see no useful purpose to be accomplished by setting them out or discussing them in detail. The appellant cites 1 Moore on Fraudulent Conveyances, 84, to the following effect: “In order that a conveyance, transfer, or transaction may be attacked as being fraudulent and void as against creditors, prejudice to the rights of creditors must result therefrom, even where there is actual fraudulent intent. A mere intent to defraud not resulting in injury will not render a conveyance fraudulent; there must be something done in pursuance of the intention which operates prejudicially on the rights of creditors.” We do not question this statement as embodying a sound legal principle, but we fail to see its applicability to the instant case. It is doubtless further true, as the same uniter proceeds to say: “The transfer by a debtor of exempt property or property of little or no value, not being prejudicial to the rights of creditors, cannot be set aside as fraudulent and the property subjected by -creditors.” Neither have we any fault to find with the following excerpt from Dunham v. Cox, 10 N. J. Eq. 437, text 467, S. C. 64 Amer. Dec. 460, text 462, also cited by the appellant: “It is not enough for the bill to show that the debtor has made a fraudulent disposition of any particular portion of his property to entitle the creditor to the aid of a court of equity. He must show that such disposition embarrasses him in obtaining satisfaction of his debt; for if the debtor has other propeidy subject to the judgment and execution sufficient to satisfy the debt, there is no necessity for the creditor to resort to equity.” We fail to see, however, wherein this principle can avail the appellant. It is clearly and positively alleged in the bill that the Jernigan Lumber Company -had conveyed all of its property to the appellant so that nothing was left out of which the judgments of the appellees could be satisfied; that a majority of the shares of stock in the appellant corporation was subscribed for by individual stockholders and directors of the Jernigan Lumber Company and therefore, the appellant was not an innocent purchaser for value; that no consideration was paid, for the property of the Jernigan Lumber Company so coiive3ed to the appellant save the issuance of shares of stock in the appellant corporation to individual stockholders and directors of the Jernigan Lumber Company and an agreement by the appellant to pay certain mortgage indebtedness of such Jernigan Lumber Company; that the value of the property so conveyed “amounted to considerably more than the secured indebtedness, i. e., the mortgages, the payment of which was provided for in the conveyance.” It is also further alleged in the bill that it was the express understanding and agreement at the time of the conveyance that all the indebtedness of the Jernigan Lumber 'Company, including the indebtedness of the appellees would be paid by the appellant. Even if the contention of the appellant 'be conceded that the allegations of the bill concerning the agreement by the appellant for the payment of the indebtedness of the appellees are so vaguely, ambiguously and uncertainly stated as not to sufficiently charge the appellant, we do not see that the situation is materially changed or that the bill is rendered demurrable thereby. As was held in Logan v. Logan, 22 Fla. 561, S. C. 1 Amer. St. Rep. 212, “when the legal effect of a conveyance is to hinder or delay creditors, the intent will be presumed regardless of the actual motives of the parties.” Also see the reasoning- and the authorities cited therein. As was also held by this court in Bloxham, Comptroller, v. Florida Cent. & P. R. Co., 35 Fla. 625, 17 South. Rep. 902 : “When a new corporation is created by the consolidation of two or more corporations, and no provision is made by statute or by the articles of incorporation for the payment of the debts and liabilities of- the constituent corporations, the new corporation assumes all the debts and liabilities of the constituent companies, which follow as an incident of the consolidation; and under such circumstances such consolidated corporation is not an innocent purchaser for value of the property of its constituent companies, so as to prevent the State from subjecting the same to payment of taxes thereon.” While the point at issue in this cited case was the enforcement of the State's lien for taxes, but the reasoning in the opinion and the authorities cited in support thereof will be found to be very much in point in the instant case. See especially the excerpts from- the opinions in Hancock v. Holbrook, 40 La. Ann. 53, 3 South. Rep. 351, and Hibernia Insurance Co. v. St. Louis & New Orleans Transportation Co., 13 Fed. Rep. 516, 4 McCrary, 432. Also see Atlantic Coast Line R. R. Co. v. Cone, 53 Fla. 1017, 43 South. Rep. 514. We would also refer to 10 Cyc. 286, 287, 288, 308, 1266 et seq. and authorities cited in notes, and Jones on Insolvent Corporations, sections. 194 and 195. Also see Curran v. State of Arkansas, 15 How. (U. S.) 304. The contention of the appellant that the bill is demurrable for the reason that it fails to- allege that the reasonable value of the property conveyed by -.he Jernigan Lumber Company was greater than the amount paid therefor by the appellant cannot be sustained. We are of the opinion that the allegation in the bill that the valuation of such property was considerably more than the mortgage indebtedness of the Jernigan Lumber Company assumed by the appellant, taken in connection with the other allegations, is sufficient to shield the bill from, the attack made upon it by the demurrer.

Upon the overruling of the demurrer, the appellant filed an answer to the bill, to which the appellees filed a replication and an order was made referring- the cause to ,a master to take the testimony therein. Upon the coming in of his report, which embraced a considerable amount of evidence, both oral and documentary, the cause came on for a final hearing and a final decree was rendered therein in favor of the complainants, in accordance with the prayers of their bill. Such decree was rendered on the 13th day of October, 1908, and on the 30th day of November, 1908, the court made an order amending such decreé. The other assignments of error question the sufficiency of the evidence to support the decree. We shall not undertake to give a sjmopsis of the evidence. These assignments are but lightly urged before us, the main argument of the appellant being directed to' the first assignment based upon the overruling of the demurrer, with which we have already dealt. We have given the evidence our careful consideration and are of the opinion that it amply warranted the decree made. Finding no' error in the record it follows that the decree must be affirmed.

All concur except Parkhill, J., who took no part because of illness.