Josiah T. Budd, Administrator of Jackson Kemp, deceased, Appellant, vs. Wm. Ryal Long, Appellee, 13 Fla. 288

RABID ALL, C. J., delivered the opinion of the court. "W. Ryal Long filed his bill in chancery against J. T. Budd, former sheriff', &c., and ex offieio administrator of the estate of Jackson Kemp, deceased, and Daniel L. Oakley, sheriff of Jefferson county, alleging that on the 25th October, 1863, he purchased for a valuable consideration, through one C. A. Bradley, from one Yalentine Clem, a piece of land near Monticello, described as follows : The south half of an acre of land known as the southwest corner of the southwest quarter of

section 19, T. 2, R. 5, N. and East, and also the adjoining block on lot on the south side, containing two hundred feet square, on the east side of the northeast corner of the Monticello eighth of land, containing one and a half acres, more or less. That complainant being then a free person of color, the property was purchased in the name of Bradley for the use of complainant, because under the laws of this State the purchase could not be made in his own name; that the deed of conveyance therefor was duly recorded December 14, 1863, and subsequently Bradley released the said property to the complainant.

The deed of Yalentine Clem to Bradley conveys the property to Bradley, his heirs, executors, administrators and assigns, for the use of said Long, his heirs, executors, administrators and assigns; and the deed of Bradley to Long, dated July 31, 1868, recites that whereas, the laws of Florida formerly rendered it unlawful for a free person of color to buy property without the intervention of a guardian, and that Long, while such laws were in force, accumulated property and purchased the lands in question, taking tfte titles thereto in the name of Bradley, who acted as his guardian, and such laws being,no longer in force, and said Bradley having no individual interest in the property, he thereupon released and conveyed the same to Long, together with other property similarly acquired.

Copies of these deeds are annexed to the bill as exhibits ; that complainant remained in possession of the lands until the 13th November, 1868, when Oakley, sheriff of Jefferson county, levied upon them under an execution issued in favor of Budd, as administrator of Kemp against Clem, upon a judgment rendered November 14, 1864, for $932 and costs; that said judgment was void because of sundry irregularities in the record ; that after the death of Kemp the suit was not revived; that the administrator claims to have a lien upon the land by virtue of a writ of attachment issued October 22,1863, in favor of Kemp against Clem, which was returned executed “ by levying upon the following-property, to-wit: one half acre, being the south half of an acre in S.

W. corner of E. ½, S.

W. ¼, sec. 19, T. 2, R. 5, N. and E.;” that the attachment is void because there was no affidavit upon which it was issued, the j urat not being signed, and other irregularities and defects ; that the judgment ought to be discharged because of certain garnishment proceedings, in which the money of complainant in the hands of Bradley, which was placed in his hands by complainant to purchase the land, was seized, which money was afterwards funded by Bradley, with the consent of Kemp, in Confederate securities, which were ordered by the court to be held by Budd. to await the further order of the court, and in the meantime these securities became worthless ; that the levy under the execution covers one and a half acres, being one more than was levied on by the attachment, and the execution is alleged to be void because it recites a judgment rendered Ro-Arember 15, 1864.

Whereas, the judgment, if rendered at all, was rendered on the 14th November, 1864. And the bill prays that said judgment may be set aside, or that the levy be discharged on account of the illegality of the attachment, or that the judgment may be satisfied to the extent of the aniount of the said purchase money paid over to Rudd under the order of the court; that complainant’s lands may be declared not subject to the judgment and execution, and that the appellant be enjoined from further proceedings under said judgment and execution against his said lands, and for general relief.

The answer of defendant, Budd, after insisting that there is-no equity in the bill, admits the purchase of the land from Clem, and the payment therefor by complainant as alleged,. but says that the purchase was not made until after the attachment issued in behalf of Kemp had been levied; that the affidavit for the attachment was actually sworn to ; that soon after the said purchase, complainant, who had paid Clem the purchase price of the land, was informed of the levy, and that Bradley by some means recovered for complainant a large sum of the same money he had paid Clem for the lands; that the money was funded in four per cent, certificates of the Confederate States by Bradley, by the consent of all the parties in the proceedings; that the court ordered said certificates to be held by said Budd, as sheriff, until the further order of the court, and meantime the same became worthless, and the court has never made further order in the premises ; that the suit of Kemp vs.

Clem was revived after the death of Kemp in the name of defendant, Budd, ex officio administrator; that Clem entered his appearance in the suit in the spring term of 1863 by John M.

Smith, his attorney, and also in the fall term, 1864, at which the judgment was rendered against Clem in favor of defendant as administrator of Kemp ; that the attachment was a proceeding in the action ancillary to the original suit, and Clem had personal notice thereof; that the judgment was rendered on ■the 15th November, 1864; that by virtue of the levy of the attachment upon the property, the judgment was and is a lien upon it; that the judgment has not been paid or satisfied, nor any portion thereof, except costs ; that if all the lands purchased by complainant of Clem were not levied on by virtue of the attachment, it was intended that they should be; that Oakley, as sheriff, levied the executions, as alleged, upon the property mentioned in the bill, and he claims that all said property was subject to the lien of said judgment, and the complainant’s title, if he had any, was subject to said lien.

The complainant filed a general replication. On January 28, 1869, a final decree was rendered by the court.

The decree recites that the “ cause came on for a final hearing upon the bill, answer and other papers filed in said cause.” (It may be remarked here, that a certified copy of the record and proceedings in the suit of Kemp against Clem was brought up by certiora/)'i, and was used by the appellee upon the argument; but upon examining that record and the proceedings in this case, we cannot find that that record was used or offered upon the hearing in the Circuit Court, and it is therefore not properly a part of the record in this case.

Nor do we see that anything contained in it can affect the decision of this cause.) The decree was in favor of the complainant, declaring that the judgment was not a lien upon the property, and enjoining all further proceeding’s under the execution against the property mentioned in the bill, and awarding costs against the defendant, Budd. From this decree the defendant, Budd, appealed. The appellant insists that the decree should be reversed, because: 1.

The appearance of the attorney of the appellee’s vendor in the original action, without exception to the proceedings in ancillary attachment, was a waiver of any irregularities or omissions therein. 2. That appellee was a purchaser pendente lite, the land being subject to the lien created by the levy of the writ of attachment, which in this proceeding was notice to the world. 3. That the refunding and acceptance of the purchase money of the land was virtually a rescisión of the contract in relation to it, rendering all the land conveyed by the vendor’s deed subject to the judgment obtained against him. 4.

That the acts and conduct of the vendor and vendee afford at least presumptive evidence of the truth of the alleged fraudulent intention of the vendor, with the cognizance of the vendee, which alone renders the decree erroneous and a proper subject of reversal. 5. That the decree ought to be reversed, so far at least as it enjoins the judgment against that portion of the land levied on under the proceeding in attachment, and binding upon it “ except as to pre-existing liens.” 6.

That the title to the land conveyed by Clem to Bradley for the use of Long, never vested in Long, neither in law nor equity—neither under the statute of uses nor bill in chancery, to execute the trust, if any were created by the deed. I. The appellants, in their brief and argument, insist that there is no equity in the bill; that every right the complainant sets up might be available at law, and that where the law affords an ample and complete remedy, equity will not interfere.

This position is generally correct, and it is true that the complainant has stated much in his bill which cannot be available to him either at law or in equity. It is said, however, that it would be difficult to enumerate all the cases in which the remedy by injunction may be applied. The extent to which the jurisdiction may he carried is not marked out by any adjudged case, and, in the nature of things, it must forever remain undefined. Willard’s Eq., 408.

Equity will not interfere to prevent a mere trespass, and the sheriff, in seizing the complainant’s property, may be a mere trespasser, and the actual damage may be recovered at law; yet an actual wrongful sale and conveyance of real property, though it may not operate to dispossess the owner, yet brings a cloud upon his title and tends to annoy him, and really affects the value of the property to a greater or less extent, not actually susceptible of measurement or redress in an action at law.

It has been held, and, as we thi-nTr very properly, that where the real property of one is levied on to satisfy the debt of another, a bill of injunction may be maintained to restrain the sale, notwithstanding he has also remedies at law, and although the sheriff, by reason of Ms doubts as to the title to the property, takes an indemnifying bond. Wilson vs. Butler, 3 Munf., 559 ; England vs. Lewis, 25 Cal., 337. II. But equity will not enjoin a judgment or execution merely on the ground of errors or irregularities in the proceedings on which the judgment was rendered. Dana vs. Fish, 8 Blackford, 407; Redwine vs.

Brown, 10 Ga., 311; Reynolds vs. Horrine, 13 B. Mon., 234; 6 Gill, 391. Author- N ities to this point are numerous, that a collateral inquiry into the regularity of proceedings before a court of record will not be allowed, except to show an entire absence of jurisdiction, and that a court of chancery cannot be used to correct errors in proceedings at law, and particularly at the Instance of third parties. See Shottenkirk vs. Wheeler, 3 J. Chy. R., 280; DeReimer vs. DeCantillon, 4 id., 92; French vs. Shotwell, 6 id., 235.

That there are several irregularities and omissions alleged by the complainant to exist in the record in the suit of Kemp against Clem, may be true, and also, it may be that the supposed affidavit of Kemp, upon which the ancillary attachtaclimeut was based, was not sworn to. These are irregularities which might have been taken advantage of by the defendant in that suit, either by motion or writ of error, but they do not affect the jurisdiction of the court over the person of the defendant, or the subject matter of the suit.

The writ of attachment was doubtless regular on its face, and until it was dismissed or the levy under it vacated, third persons are bound to take notice of the levy. , The summons was duly served on the defendant, Clem, at the suit of Kemp. The suit was subsequently proceeded in and judgment taken by Budd as administrator of Kemp, deceased.

The defendant permitted this proceeding without' objection, (and certainly no other person could object.) The court was competent to protect itself, and is presumed to have acted upon what was before it, and to have acted correctly, until its proceedings are reversed or set aside. . III. The levy of the attachment was made upon one half acre of the land described in the complainant’s bill.

The complainant had purchased, and Clem had conveyed to him through Bradley one acre in addition, which the sheriff failed to levy upon under the attachment, but which is now levied upon by virtue of an execution as the property of the defendent, Clem, and it is even claimed that it is bound by the attachment because it “ should have been attached,” and the omission to attach it was an oversight or mistake.

There is no charge of fraud in the purchase of the property by the complainant, nor can the doctrine of Us pendens be well carried to the extent that a levy of one of the parcels of land by attachment affects any property other than that seized. The lien attached only by the levy, and is limited by the levy. That there may have been a fraud intended to be perpetrated upon creditors by this sale, is granted, but there is no fraud alleged or proved, and it is asking too much to insist that fraud may be implied in a case like this. On the contrary, we are impressed that the complainant acted in perfect good faith.

IV. It is insisted by the appellant that because the complainant was a “ free person of color,” he was, under the laws of this State in 1863, incapable of taking title to the property. Indeed, the complainant considered himself incapable, as he says, oí taking the title in himself, and therefore bought and paid for the property, taking title in the name of Bradley, but for his use. Under the statute of uses, the property conveyed vested immediately on the conveyance being executed in the cesind que use, unless the latter was prohibited by some law from taking property.

We are not referred to any law of this State which prohibited free persons of color from taking and holding property in their own names, nor are we aware of the existence of any such law. It is true, there was a law requiring free negroes and mulattoes over twelve years of age to select guardians, and the guardian so selected must have been approved by the Judge of Probate, and was empowered to sue for any money due to the negro, and had the same control over such persons as was possessed by guardians in other cases. Act of January 8th, 1848.

In 1866, it was enacted that every free negro over- twelve years old, who should fail to have a guardian, should be fined and committed to jail until the fine should be paid; and further, that it should not be lawful for any person “ to buy of or sell to any free negro or mulatto in this State without the written consent of the guardian,” and any person violating this provision was subject to a fine not less than one hundred or more than five hundred dollars. These acts recognized the right of free persons of color to purchase and own property, to earn money, and to recover it through the courts.

It is implied that they could not sue in their own names, but elsewhere it is held by the courts that they may be sued in their proper names without a guardian. Davis vs. Fitchett, 5 Fla., 260. Hor does the common law prohibit this class of persons holding and conveying property. They occupied an inferior rank in the commxxnity, and were not generally regarded as citizens, nor as foreigners or aliens, but were inhabitants or subjects.

Chancellor Kent says in a note to vol. 2, p. 258, 3 ed., of his Commentaries : “ The privilege of voting and the legal capacity for office are not essential to the character of a citizen, for women are citizens without either; and free jxeople of color may enjoy the one, and may acquire, and hold, and devise, and transmit by hereditary descent, real and personal estate,” all subject, of course, to such municipal regulations as may be prescribed by the State. In the conveyance to the complainant, Long, by Bradley, the latter declares that he held the property purchased with the money of Long as his guardian.

There is no issue in this case as to whether he was properly appointed a guardian under the law of the State, and for aught that appears, Long may have been under twenty-one years of age at the time of the purchase. Certain it is that Long’s money paid for the land. It is difficult to find any principle of equity or good conscience which can justify the subjection of property thus conveyed to a free colored person for a valuable consideration, paid by himself in good faith, to the payment of the debts of his grantor, merely because he was such a person.

Is it true that the money earned by a free colored person could purchase nothing ? that such money was not a good consideration for a conveyance to him or to his use, or that the conveyance was void ? I cannot consent to this, nor do I find a hint toward it in the reported decisions of our courts. The only importance, in my opinion, to be attached to the statutes in question, is that they treat this class of persons as under similar disabilities with infants, and these laws are rather designed for their protection, than to be used as traps and snares for despoiling them. Y.

It is insisted that the refunding and acceptance of the purchase money of the land was virtually a x’escision of the contract, rendering all the land conveyed by the vendor’s deed subject to the judgment obtained. But there is nothing in this record showing a refunding to and acceptance of the^ purchase money to the grantee. The answer alludes to some transaction by which the grantee evidently undertook to save himself from loss, but what was done does not distinctly appear, except that Long saved a part of his money.

Certainly it does not appear that the contract was rescinded, but the complainant alleges, and the defendant does not deny, that the grantee paid a valuable consideration for the property ; that it was conveyed, and he now holds the property under that conveyance. It may be that the grantee lost nothing by the garnishment proceedings, but it seems that a loss was sustained by somebody in that transaction, for something of considerable value was seized under the garnishment, and held at the instance of the plaintiff until it became worthless.

And but for this latter fact, the plaintiff would doubtless have realized the greater portion of his judgment out of it. The garnishment proceedings, however, have no influence upon the case as stated, or the rights of these parties, whether they were regular or irregular. This case was presented and argued as upon the bill and answer, there having been no testimony taken, and there is nothing else in. the record which we can consider, the exhibits being treated as part of the pleadings.

The half of one acre of land, which was seized by virtue of the attachment referred to in the pleadings, was from the time of that levy liable to be levied upon and sold to satisfy the judgment recovered in the suit of Kemp vs. Clem. The other land, described in the bill as having been levied upon by the execution under that judgment, was not subject to suchlevy, and the complainant is entitled to an injunction restraining its sale. The decree of the Circuit Court, as to the one half acre of land levied upon by the writ of attachment, is reversed; and as to the residue, the decree is affirmed.

Each party to pay one-half the costs incurred upon this appeal.