45 Fla. 556 | Fla. | 1903
Appellant, as complainant below, filed his bill against the appellees to set aside as voluntary a certain convey-an<e of real estate made by T. L. Jenerson and wife Sophron'ia to S. R. Causey, and by the said Causey to the said Pophronia, and also a conveyance of other realty by the said T. L. Jenerson and wife to their son O. L. Jenerson. He averred the recovery of a judgment in another county against the said T. L. Jenerson about one year prior to these conveyances and that all parties had notice thereof, and that since said conveyances execution had been sued out upon said judgment and appellant had become the purchaser of said lands at a sheriff's sale thereunder. Service was had upon O. 'L. Jenerson and P. TL Causey and a decree was entered May 15, 1895, ordering the said O. L. Jenerson to deliver up his deed for cancellation. Three years thereafter T. L. Jennerson and wife appeared and demurred to the’ bill, whereupon the said Ropes amended by averring that the said lands were unoccupied. that the defendants T. L. Jenerson and wife were not in Florida when the suit commenced, and liad no agent or attorney upon whom service of process could be made, and that said land was not in the possession ot any person against whom an action of ejectment could he brought. Thereupon the said T. L. Jenerson and wife answered under their several .oaths, among other things, that they were in actual possession of the lands so conveyed to Popronia, occupying it as their home at the time the bill was filed and had continued so to occupy it; that said land was their homestead before the bringing of the original common law action and had been ever since. They admitted that at the time the bill was filed.they were
On s: bearing u.t on bill, answer and replication, after f-e fi?«e for taking tistiir.ony has ex; ired, the rule is that eveiy allegation in the answer responsive to the bill is to km as true. Kellogg v. Singer Manufacturing Company. 35 Fla. 99, 17 South. Rep. 68. The equity of the bill vas rested by the comr lainant npon tl’.e allegations that the land in controversy was unoccupied and there ivas no one in possession against whom ejectment would lie. There is no claim whatever That lie was himself in possisfron, and his failure to test the riaht to the possession atjaw was based w cm tlw alleged vacant character of U e kmd. T1-e answer smarely met this equity by averring the actual occupancy thereof by the defendants as a home. The only evidence as to its character was that given in the priii answer, and it may be, therefore, taken as established that the land ivas occupied adversely.
A court of equity can not entertain a suit by a purchase of real estate at rrecuiion sale, who is not in possession. asr«inst a ; arty who is in possession, to set aside a prior conveyance wade by the judgment debtor as a cloud on complainant’s title, on the ground that such conveyance was in fraud of creditors. Tf the conveyance sought to be set aside ivas fraudulent, it was void as to creditors,
Tbobill as to this land was, therefore, properly dismissed. but t1 e (ourt should have stopped here. Having as■.«■rniiied there .was no equity in'the bill, there should xu:u have been a decree adjudging the title to be in tbo Cfth n dan is and that such land constituted their homeaiead.
The final decree from v,i ieh this appeal is taken, in so Irv v-s it'adjudges f e lands therein described to be the k-fHaestcaS of T. L. Jenerson and Boplironia Jenerson, his xvtfe. Is reven sod, and in all other lespccts it is affirmed'. The costs of t’ is appeal will he taxed against T. L. JenerT-rtlt.