Caleb W. Loring, Appellant, vs. Dunning & Palmer, et als., Appellees, 16 Fla. 119

The Ciiief-Justioe delivered the opinion of the court. This is a creditor’s bill by Dunning and others against Mrs. Sophia E. Carr and others, judgment debtors, and Caleb W. Loring, grantee, of certain property which the complainants seek to subject to the payment of their judgment. Loring alone answers the bill. The answer alleges that by the articles of copartnership between Mrs. Carr and her copartners, she was a special partner and not liable for the debts of the firm beyond the sum of three thousand dollars, according to the statute regulating partnerships.

Premising that if these facts were proved they do not constitute a defence in this proceeding, it is only necessary to remark that such defense should be made, if at all, by Mrs. Carr when she was sued for the debt of the firm. The indebtedness having been established against her by the judgment recovered against her and her partners, it is too late to 'interpose such supposed defence. The consideration of an indebtedness established by a valid judgment is beyond the reach of inquiry under a creditor’s bill. It is established by the pleadings and proofs that the Palatka property conveyed by Mrs.

Carr to Loring was worth a much larger sum than that which he had or agreed to pay her for it. In 1870, she recites in the paper designating Mr. Call as her trustee that she deems it advisable to sell the real estate at $24,000 and invest the proceeds in U. S. bonds. This may be deemed her estimate of its value at that time. In 1871, the year in which the conveyance was made to Loring, the lands conveyed are estimated by James Burt, the trustee, at the value of twenty-five thousand dollars. The witness Moragne estimates it at fifteen thousand dollars.

There is no testimony as to its present value, and it is not apparent that its value, at the time of filing the bill in this case was less than in 1871. It is urged in argument by the appellant that even if Mrs. Carr’s conveyance to Loring had been a mere voluntary conveyance, it could not be impeached, because, he says, she had other property remaining in her hands-of the value of four thousand dollars and upwards, out of which the complainants could make their demands.

While the proposition is in general correct, that a voluntary conveyance is not necessarily fraudulent as to creditors, abundant property remaining to satisfy them, we find no facts proved in this case calling for the application of the rule. It is said in the answer that she had in 1871 in the hands of Mr. Call, beside the real estate, over four thousand dollars of personal estate, besides a large amount of debts due to the firm of B. E. Carr & Co., of which she was a member.

There is no proof whatever that this statement is correct; or if correct, that the debts of the firm and her individual debts and the 'liabilities of the estate of her husband, other than those assumed by Loring, were less than the amount of this personal property. On the other hand, it is admitted that the execution issued upon judgments against her and her firm have been returned wholly unsatisfied, and that they have no property subject to execution.

In the absence of any explanation, it must be presumed that there was no such surplus, or that in some manner it has been put beyond the reach of her creditors, or absorbed in the payment of debts without satisfying all of them. It is finally urged on the part of the appellant that the complainants cannot maintain the allegation of fraud in the execution of the conveyance by reason of the inadequacy of the consideration alone, or even by the additional fact that the grantee had notice of the pecuniary embarrassment of the grantor.

That even the fraudulent intent of the grantor did not affect the purchaser who had no notice of such intent. In other words, that if he purchased in good faith, and for a valuable consideration, the conveyance to him would be upheld. An examination of the circumstances under which the conveyance in question took place will show that the rule contended for can hardly be applied to this case. Mrs. Carr was the widow of B. E.

Oarr, and was at the time of her husband’s death the beneficiary of a considerable amount of real and personal property, the real estate having been placed in the hands of a trustee for her use. She was engaged in settling the affairs of liis estate, and in carrying on a mercantile business under the firm name used by her husband and partners in his life time. The new firm incurred debts in carrying on the business. It is evident that defendant Loring knew her circumstances. He was a trustee of an estate in Massachusetts, of which she was the cestui que trust.

He states in his answer that early in December, 1871, she informed hvm tha: she was “embarrassed and in great trouble ” in relation to the settlement of her husband’s estate, and it was necessary to raise money for the purpose of settlement, and requested him to buy her house in St. Angustime, which she offered at a very low price. Pie resided in Boston, and still resides there. He sent his attorney, Snow, to Florida to assist her in her trouble.

Found Call in possession of her real and personal property, “ amounting to many thousand dollars.” She wanted him to aid her with money, get the property and hold it for his own security for advances, and to the end that she-might have the benefit of its greater value over and above contemplated advances, which were in the aggregate less than five thousand dollars.

She wanted him to give her an obligation to this effect, but he (Snow) declined to “ incumber the .property with a trust,” and seeing no other way out of her difficulty, she consented to give Loring an absolute conveyance of the property upon the terms proposed by Snow, the defendant Loring consenting to the terms by telegraph. The sums to be paid and advanced were, as detailed in the ".•answer, somewhat indefinite as to the precise amount. Among the items is one of $381" for the expenses of his .■agent Snow in coming from Boston and transacting this business.

The whole transaction was without the knowledge of Mr. Burt, who held the legal title to the real estate in trust. He “ was not advised with, and could have -known nothing until after it was closed.” There is no explanation of this fact, and no reasons given why Mr. Burt, the trustee, who, previous to that time, had been a trusted friend of the family, and who lived in the immediate vicinity, was kept in ignorance of this important transfer. Mr. Loring was not seeking this property for the purpose of investment, and from the time of her application to him sip to the time of the purchase he did not see it.

Mrs. ■Oarr, it appears, sought him, and informed him that she was “ embarrassed and in great trouble ” in pecuniary matters, and besought him to buy her St. Augustine house. At this point it was that he began to act and sent Mr. Snow, his agent, to assist her. The price or value of the property is not agreed upon or fixed in any manner, nor is it definitely named in the deed.

In the negotiation several amounts which he is to pay are ■named, and several items indefinite in amount are included. 'This is a somewhat peculiar mode of transacting this kind of business; peculiar on tbe part of both buyer and seller, if it be regarded as a purely bona fide bargain and sale. The item of $381_ for the expenses of the pwrehasend s agent in making the purchase, to be paid by the seller, is something out of the ordinary track of business. Yet Mrs.

Carr is to pay and allow as part of the purchase-money this item, not her own debt.or her own benefit, but the expenses of the purchaser in buying her property again, the conveyance by Call and Mrs. Carr of the real estate to Loring.

Also-conveys to him “ and to his heirs and assigns forever, all the goods and chattels, houses, lands and estate, both real and personal,” referring to all her interest in the mercantile firm, and its property, and “ all bills, notes, accounts, moneys,” &c., which the answer says were of the value of “ several.-, thousand dollars,” and “ of the value of four thousand dol- • lars, besides a large amount of debts due the firm.” What, became of this personal property after it was thus transferred, to Mr.

Loring does not appear, except as stated in the answer, that she continued to carry on the mercantile business after Mr. Snow had assisted her in obtaining control of her • personal and other property from Call. If it be true, as he states, that he obtained this real property, worth fifteen to twenty thousand dollars, or more and personal property worth four thousand or more, for $1/767 cash, and his promise to pay about $3,000 more, (including his own expenses in driving the bargain,) knowing as he did from Mrs.

Carr that she came to him in her distress from pecuniary embarrassments, and that she desired his assistance to save her property from sacrifice, that creditors were pressing, and Call, the trustee, was threatening, it presents a case in which a court of equity would be reluctant to withhold its ■ power either in her behalf or in behalf of her creditors.. There is no escape from the conclusion, from this record,. that Mrs.

Carr’s inability to pay these judgments has arisen from the absorption by this defendant of all her property in-. ‘■exchange for a “ mess of pottage.” He, however, says, in his own behalf, that though his purchase was absolute and tona fide, yet “he does not intend personally to make any profit out of said transaction,” but if the property brings in more than the cost and expenses, he intends to “ pay the same ..into the principal fund of the trust estate, which he holds in strict trust for said Sophia R.

Oarr and her children,” but protests that he has never made any agreement to do so; . and right here it is that equity steps in to give appropriate -direction. It is apparent from the whole case that the intention to secure this property to Mrs. Carr and her children Influenced this defendant, and it is honorable on his part to make announcement of his intention to deal justly by those ■whose property he so absolutely controls. He should go yet farther toward relieving them from this indebtedness, and in this he must have the aid of this court.

His expressed intention to appropriate the greater part of the value of the Palatka property for the benefit of this judgment debtor . and her family, may fairly be said to have been formed when he advanced money to relieve them of a portion of Mrs. Carr’s embarrassments; and this is precisely what the ■ complainants, as creditors, complain of and are striving to prevent. The question of fraud is one of motive and intent; a .conclusion to be inferred from all the circumstances of the case. In Chesterfield et al. vs.

Jansen, 2 Yes. 125-155-6, Lord Hardwicke, in classifying the Various kinds of frauds, says: “ A third kind of fraud is that which may be presumed from the circumstaucesi and condition of the parties contracting. * * But it is wisely established in' this court to prevent taking surreptitious advantage of the weakness or necessity of another, which knowingly to do, is ■ equally against conscience as to take advantage of his ignorance.

A fourth kind of fraud may be collected or inferred, in the consideration of this court, from the nature and cireumstances of the transactions as being an imposition and’ deceit upon the other persons not parties to the fraudulent' agreement.

Particular persons in contracts shall not only contract bona fide, as between themselves, but shall not:transact mala fide in respect to other persons, who stand in such relation to either as to be affected by the contract or-the consequences of it; and as to the rest of mankind, beside the parties contracting are concerned, it is properly-said to be governed on public utility.” If the transaction in question was not an imposition upon?Mrs.

Carr, taking advantage of her necessities while “in-, great distress” and “embarassment,” according to defendant’s answer, and thus perhaps liable to be set aside ever,' by her, and it was fully acquiesced in by her, it may fairly be regarded as an imposition upon other persons not parties-to it—“ mala fide as to other persons who stand in such relation to either as to be affected by the contract or the consequences of it,” and thus against public policy, according to* the language of Lord Iiardwicke.

The purchase of the property under the circumstances,, not at the suggestion or solicitation of Loring, but at the* sole solicitation of the debtor, with full notice of the financial embarassment of the debtor; without contracting for a; specific price or consideration, as though it was of no consequence; the payment as part of the consideration of the purchaser’s expenses in making the purchase; the legal title-remaining in Mrs.

Carr’s trustee; the possession remaining; unehanged; the relations of the contracting parties, the-purchaser being the trustee of the seller’s estate in Massachusetts ; the gross inadequacy of the price paid, or agreed to be paid ; the total disappearance of several thousand dollars in value of personal property and effects of Mrs. Carr, which were conveyed with the land to the purchaser, Lo-ring—all give to this case an aspect which is far different from the mere purchase of property in the ordinary course-of business, for an inadequate consideration, with or without notice of the vendpr’s indebtedness.

Here appear a multitude of facts, which, taken tdgether, destroy the presumption of good faith on the part of seller and purchaser, “ in respect of the rights of others who were not parties to it.” The appellant says that by the decree the complainants have accomplished for Mrs. Carr what she could not have asked in her own behalf, to-wit: the construction that the depd is merely a mortgage. Whether Mrs. Carr could have .asked and obtained such a deci’ee, under the circumstances, is not the question here.' Mrs. Carr says nothing.

The decree goes against her by default, and upon the record the bill stands confessed by her. The decree gives to the defendant Loring a lien upon the. property to the amount paid by him, and the conveyance for this purpose is treated as a mortgage so far as the rights of the complainants are affected, and whether it is technically or appropriately deemed a 'mortgage eo nomine, is of little consequence. The court gives the defendant Loring a preferred lien for the money advanced, and he may well be content with the priority accorded to him.

His conveyance is deemed by the court to be voidable by the creditors only so far as it purports to be evidence of an absolute sale as against eornplaáncMits. As Mr. Boring’s legal and equitable rights are saved by the decree in this form, he cannot reasonably complain of it. As is said by the court in Barrow vs.

Bailey, 5 Fla., 45: “ In equity, where a security or conveyance is found to be constructively fraudulent, it is upheld in favor of one not guilty of fraud, to the extent of the actual consideration, and is vacated only as to the excess ; and so when the property is of greater value than the consideration, the conveyance may be impeached as being voluntary to a partial extent, and if there be no actual fraud (on the part of the grantee) will be sustained to the extent of the consideration and vacated as to the residue, or the grantee be decreed to be, as to such residue, a trustee for creditors.” And the court says further, quoting from Chancellor Kent, that nothing can be more equitable than this mode of dealing -with these conveyances, of such indecisive and dubious aspect, that they cannot either be entirely suppressed or entirely supported with satisfaction and safety.

We commend and adopt, the able opinion of Mr. Justice Thompson in Barrow vs. Bailey upon the question of fraud in the conveyance of this property. The decree of the Circuit Court is sustained. The appellants filed a petition for re-hearing, which the court denied.