50 Fla. 594 | Fla. | 1905
This is a suit in equity instituted in the Circuit Court for Taylor county by the appellee against the appellants. The bill in substance alleges that the appellee and Joseph Platt, one of the appellants, were co-partners in the general merchandise business in the town of Perry, under the firm name of W. N. Platt & Brother, until on or about the 23rd day of April, 1904, when the appellee sold and transferred his entire interest in said business to his partner, Joseph Platt,- for and in consideration of the sum of $490.00 in money and th^ assumption by the said Joseph Platt of the entire indebtedness of the firm and relieving the appellee from any liability therefor; that said indebtedness amounted to about $1800.00, of which amount said appellant had paid only about $400.00, leaving a balance of about $1400.00 still due and unpaid, for which the appellee was still held personally liable by the creditors of said firm; that said appellant took possession of said stock of merchandise on
The appellants filed separate answers, J. M. Chancy admitting in his answer that the sale to him was only conditional and was made in order that Joseph Platt might be able to realize money upon the obligation of said
The separate answer filed by Joseph Platt contains in substance the same averments as appear in the answer of Chancy, and, in addition thereto, an admission that the sale made by said appellant to his mother, M. J. Platt, was without consideration but in order that Joseph Platt might gain time within which to raise money to pay the creditors of the old firm, who were pressing him. The answer also contains other averments which were virtually admissions of other material allegations in the bill, though it denies any and all fraudulent intent. The answer contains a further averment to the effect that respondent is the head of a family residing in this State and that as such head he is entitled to claim and have exempt to him $1000.00 worth of personal property as his exemption under the constitution and laws of Florida, which he seeks to have allotted to him out of said stock of merchandise, avering that he has no other property whatever of any kind or character either in the State of Florida or elsewhere.
On the 19th day of July, 1904, the Circuit Judge made an order appointing J. O. Culpepper a receiver to take charge of the stock of merchandise and sell and dispose of the same to the best advantage, requiring said receiver to file a bond in the sum of $2200.00, with proper conditions, and sufficient sureties to be approved by the Clerk of the Circuit Court, and further ordering the receiver to turn
The appellee and the receiver filed their respective bonds in accordance with the order, but Joseph Platt failed to file any bond, so the property remained in the possession of the receiver.
The appellants also filed a motion seeking to have the order appointing the receiver dissolved or modified to the extent of awarding to Joseph Platt out of the stock of goods in the hands of the receiver $1000.00 worth as his exemption under the constitution and accompanied said motion with various and sundry affidavits and papers. This motion came on to be heard, in the absence of the Judge of the Third Circuit, before the Judge of the Fifth Circuit, who made an order refusing at that time to dissolve or modify the order as sought by appellants and continuing the same until the final hearing.
A replication was filed to the two answers, an examiner was appointed to take the testimony, which testimony was so taken and a final decree was rendered by the Judge of the Third Circuit, finding all the equities in favor of the original complaint and that said property in the hands of the receiver was subject to the payment of the liabilities of the firm of W. N. Platt & Brother and denying the claim of Joseph Platt to an exemption therein.
Appellants have entered their appeal from this decree, making the same returnable to the present term of this
Section 1 of Article 10 of the Constitution of 1885, after providing for the exemption of a homestead together with one thousand dollars worth of personal property by the head of a family residing in this State from forced sale under process of any court, contains this further provision: “But no property shall be exempt from sale for taxes or assessments, or for the payment of obligations contracted for the purchase of said property, or for the erection or repair of improvements on the real estate exempted, or for house, field or other labor performed on the same.”
As we said in Wilhelm v. Locklar, 46 Fla. 575, 35 South. Rep. 6, in discussing the question what constituted “obligations contracted for the purchase of said property,” “A strict construction must, therefore, be given to this exception,” and we declined to extend the terms, beyond what we conceived the words so used to ordinarily mean. However, the facts in the instant case are very different from those in the cited case, and while we are unwilling to extend the terms we are equally as unwilling to so contract them as to render them meaningless or nugatory. Most assuredly must we refuse to so interpret or construe them as to aid in the perperation of a fraud. Drucker v. Rosenstein, 19 Fla. 191; Smith v. Guckenheimer, 42 Fla. 1, text 41, 27 South. Rep. 900; Florida Loan & Trust Co. v. Crabb, 45 Fla. 306, 33 South. Rep. 523. The record in the instant case clearly discloses that
The decree must be affirmed, and it is so ordered, at the cost of appellants.