79 Fla. 638 | Fla. | 1920
This case is here for the second time, this time upon appeal from the final decree ¡¡rendered in February, 1918. The first appeal was taken from an order sustaining a demurrer to the bill of complaint which was exhibited by Freda K. Robinson and her husband O. K. Robinson against Philip Tischler, Flora Max and Nathan Max, her husband. The purpose of the bill was to 'subject a certain strip of land in the city of -.Jacksonville, twelve feet wide fronting on Main street and running back one hundred’ and five feet, being part of the northern end of Lot four, Block eighty (official numbers) and adjoining the Placide Hotel, to the payment of the claims of the creditors of Philip Tischler, among Avhom Avere Freda K. Robinson and her husband, O. K. Robinson.
A statement of the allegations of the bill is contained in the reported case which is in Volume 69, Page 77, of the Florida Reports. In that case it was held that
After this decision the complainants amended their bill by striking out the fourteenth paragraph which con- . tained the prayer and substituted another in which it was prayed that the title to the strip of land be decreed to be held by Philip Tischler for the benefit of the judgment creditors whose claims were reduced to judgment prior to the alléged fraudulent conveyance to Flora Tischler Max and that the land be declared subject to such liens, and that .it be sold in satisfaction thereof. Or that the title to the land be declared to be in the Trustee in Bankruptcy of the Estate of Philip Tischler and held by him subject to the lien of such judgment. W. Frazier Jones, as Trustee in Bankruptcy of the Estate of Tischler,' was made a party. Philip Tischler answered the bill incorporating in his answer a demurrer to the bill upon the grounds that the complainant’s remedy, if any existed, was within the cognizance of the District Court of the United States; that the effect and purpose of the bill was to revoke the discharge in bankruptcy of Philip Tischler, which occurred more than one year before the bill Avas filed; and that the suit was against a trustee in bankruptcy subsequent to 'two years after the estate had been
The answer also averred that the complainants in March, 1901, filed their bill in the Circuit Court for Duval County against Philip Tischler and others, including the firm of Thalheimer Brothers, in which it was sought to subject to the payment of the- complainants’ claim certain property included in a mortgage from Philip Tischler to Thalheimer Brothers upon the ground that the same was in part if not wholly, fraudulent in that it did not represent the true sum of indebtedness due by Philip Tischler to Thalheimer Brothers; that the issues in this case were decided in favor of the defendant and the decree was affirmed by the Supreme Court. The same
Flora T. Max and her husband also answered the bill disclaiming any knowledge or. information of many of the allegations of fact contained’ in the bill, and denied that Philip Tischler had been the real owner of the property since December, 1904, and that it was conveyed by the Metropolitan Company under an agreement with Tischler for his benefit, and that it was held by Flora Tischler Max in her name for the purpose of defrauding the creditors of Philip Tischler. They denied that the consideration for the conveyance was paid by Philip Tischler. |They admit the conveyance to him about the time alleged in the bill but deny that the conveyance was without consideration. Upon the death of Philip Tischler, which occurred some time after the institution of this suit, other persons were made defendants upon petition of complainants.
Estelle Fridenberg Tischler, individually and as administratrix of the estate of Philip Tischler, answered the bill incorporating in the answer a demurrer upon the same grounds as stated heretofore, and' averred the bankruptcy proceedings by way of plea.
In February, 1918, the Chancellor rendered a final decree, holding the equities to be with the complainants and subjecting the property described to the payment of the decree which was obtained by the complainants against Philip Tischler in October, 1904, and directing a sale of the property and the application of the proceeds to the payment of the debt. From this decree Estelle Fridenberg Tischler, individually and as administratrix of the estate of Philip Tischler, and in the name of the other defendants, appealed.
The alleged fraud in this case was said to have consisted in the effort of Philip Tischler in December, 1904, while he was indebted to the complainant and was possessed of no visible property out of the proceeds of which the complainant could obtain payment, to conceal his real ownership to a narrow strip of land fronting on Main street, which he had' arranged to acquire some years before. From the evidence introduced in this case, which consisted largely of records .in other suits to which Tischler was a party, and in which the land involved here and that lying immediately to the north was involved, the following brief and perhaps incomplete history of this litigation may be gleaned: Lots four and eight, of Block eighty, lie on the west side of Main street in the city of Jacksonville and' are contiguous to each other, the south boundary line of Lot eight being the north boundary line of Lot four. In 1885 Tischler acquired the south sixty feet of Lot eight and shortly after-wards erected thereon the Placide Hotel. When he came to erect the building, however, the owner of the northern part of Lot eight would not agree to the extension of the footings of the north wall beyond the line, so Tischler acquired about thirty inches of land from the northern side of Lot Four. In 1887 Tischler gave a mortgage to
It appears to be true that Tischler by negotiations with the owners of lot four obtained an agreement for the conveyance to him of the north twelve feet, but it appears that in 1893 he assigned that agreement to Flora Tischler who afterwards became Mrs. Max, and to whom. in 1904 the conveyance was made. According to the recitation in the Metropolitan Company’s deed Tischler as
It does not appear that at that time he was insolvent or in failing circumstances.. The complainants’ predecessor had security for the debt owed'. In such case, if the assignment of Tischler’s interest to his niece had been voluntary it would not necessarily have been fraudulent for 1liat reason. 12 R. C. L. 593.
Tischler died before the evidence was taken in this case. The evidence as to fraud by him should be clear and convincing. See Barnes v. Willis, 65 Fla. 363, 61 South. Rep. 828.
The law presumes the transaction to have been honest, that it was without fraud, that it was for an honest purpose, and the person who asserts that it was of a different character must prove it. Wilson v. Stevens, 129 Ala. 630, 29 South. Rep. 678; Gilbert v Glenny, 75 Iowa 513, 39 N. W. Rep. 818; Conry v. Benedict, 108 Iowa 664, 76 N. W. Rep. 840; Bartlett v. Blake, 37 Me. 124; Hazell v. Bank of Tipton, 95 Mo. 60, 8 S. W. Rep. 173; Hagerman v. Buchanan, 45 N. J. Eq. 292, 17 Atl. Rep. 946. But if it is true that Thalheimers’ monej- paid for the land, and there is some evidence to support such a theory, the transaction is not one of which the complainant could complain. There is evidence that Tischler became heavily
We think that the Chancellor erred, and hereby, order that the decree be and the same is reversed.