34 Fla. 377 | Fla. | 1894
This is an appeal from a decree sustaining a demurrer - to an amended bill filed in the Orange County Circuit Court by appellant. The allegations of the amended bill are in substance that the complainant therein, appellant here, on the 4th day of Jane, 1886, jointly executed a note -with defendant J. II. Livingston, at
The grounds of the demurrer are that there is no equity in the amended bill; that complainant does not show by his bill that any of his money went into the Lucerne House lot or hotel; and that under the statements of the amended bill no trust could arise, and for other good reasons appearing upon the bill.
Mrs. Livingston acquired the title to the Lucerne property, subject to the lien for purchase-money, about one year before the debt, for which Reel was surety, was contracted, and it is not alleged that the purchase of the property by her was for the purpose of defrauding her husband’s creditors, or on his account. It is distinctly alleged, however, that the husband discharged with his own means the third pur
Our conclusion is that appellant was a creditor of Livingston, within the meaning of the statute of frauds, at the time he discharged the purchase-money note against his wife’s property and continued as such to the time of filing the bill. Alston vs. Rowles, supra; McLauchlin vs. Bank of Potomac, 7 How., 220; Lowry vs. Fisher, 2 Bush, 70; Woodridge vs. Gage, 68 Ill., 157; Pennington vs. Seal, 49 Miss., 578; Bump on Fraudulent Conveyances, 497, 498.
It is next contended that it does not appear from the bill that when Livingston paid the purchase-money note against his wife’s property he was insolvent, or did not have other property ample to protect complainant as surety on the note. It is alleged in the bill that the investment in the Lucerne property by paying the purchase-money note for $1,666.66 was a voluntary settlement by Livingston on his wife, and that at the time he had little or no property in his own name subject to execution, except a lot mortgaged by him to secure the money with which to make the investment. Were this the only allegation in the bill impeaching the alleged settlement on the wife we would be called upon to say whether or not it is sufficient to sustain the bill. It was decided in Alston vs. Rowles that where property is purchased and paid for by the husband, and a deed is taken in the name -of the wife, such acts coupled with an existing indebtedness of the