23 Fla. 437 | Fla. | 1887
delivered the opinion of the court r
Action of ejectment by Appellee vs. Appellant. Plea-of not guilty. The case was submitted to the court without a jury.
The facts in this case, which were agreed on by the parties, are substantially as follows: That appellee is in possession of the lands, the one-fifth interest in which is sued for, containing two hundred and forty acres, and that said! land constituted a portion of the real estate left by Grissom C. Bird, who died intestate in Jackson county, on the-11th of October, 1862. John S. Bird, a son of said Grissom C. Bird, and one of his heirs, was appointed his administrator, and qualified as such on the 10th day of” August, 1864. That John S. Bird, on the 2d of December,, 1867, upon petition filed in the County Court of Jackson county, therein setting forth that a sale of the real estate of Grissom C. Bird, deceased, was necessary in order to-pay the debts.of said estate, and that said Grissom C. Bird left a considerable personal estate,,but that all of it had
1st. Court erred in overruling the appellant’s motion for a new trial.
2d. The court erred in rendering a judgment in favor of appellee against appellant.
Begarding the question as involved we can see no reason why such interest should not be levied on by attachment. It is true that the levy was subject to be defeated if it should be found necessary to resort to the land to pay the debts of the intestate, but the levy of the attachment on land does not dispossess the administrator, McC.’s Dig., §18, p. 114; nor would it interrupt or interfere with the administration of an estate in any way. Upon authority, however, as well as principle, such an interest is attachable. Proctor vs. Newhall, 17 Mass., 81; 16 Ohio, 271; Freeman on Executions, §188.
Another question is, can this lien, so created, be subordinated to the claim of the co-heirs of the defendant in attachment, who is also the administrator of the estate of their deceased father, arising to them from the fraudulent administration of the estate by such co-heir and administrator ? This could be done only on the theory that where one of the heirs to an estate is the administrator thereof, that his co-heirs have an equitable lien on his interest for
As William C. Bird and the other complainants in the chancery suit -instituted for setting aside the fraudulent sale made by the administrator, John S. Bird, had no lien on John S. Bird’s individual interest as an heir in the land, their decree setting aside the sale to Dawkins and the conveyance to John S. Bird’s wife, gave them no priority over any other creditor for satisfaction of their claim out of his interest in the land. Bump on Fraudulent Conveyances, 552; Freeman on Executions, §434 ; Day vs. Washburne, 25 Howard, 552 ; Robinson vs. Stewart, 10 N. Y., 89 ; 2 Ind., 189 and 642. At the time this decree, as well as when the subsequent one in the same cause for the sale of the land and application of the proceeds of John S. Bird’s interest to his indebtedness to the complainants therein was made, the attachment in Jones’ action had been levied upon the land. It was competent for Jones to do this, and proceed to judgment and sell the land ; and after a sale under such judgment for the purchaser at such sale to raise the question of fraud in the sale to Dawkins and conveyance to Mrs. Bird. Bump, F. C., 517, 518; Freeman on Judgments, §350; Chetauqua Co. Bank vs. Risley, 19 N. Y., 369 ; Scott vs. Purcell, 7 Blackford, 66. The interest was attachable. Proctor vs. Newhall, 17 Mass., 81; Lessee of Douglass vs. Massie, 16 Ohio, 271; Freeman on Executions, §183. Upon the assumption that the sale to Dawkins, and his conveyance, were fraudulent, the lien of Jones’judgment relates back to the date of the levy of the writ of attachment as against John S. Bird,
Under the agreement as to the facts of this case the appellee may be considered as having introduced the decree declaring the conveyance a fraud; no further proof of it was necessary. 19 N. Y., 369. Whether we regard the decree as one setting it aside as void as to creditors, or as a
.The judgment is reversed and a new trial granted.