J. F. McClellan, Appellant, vs. J. C. Solomon, Appellee, 23 Fla. 437

Mr. Justice Raney delivered the opinion of the court r Action of ejectment by Appellee vs. Appellant. Plea-of not guilty. The case was submitted to the court without a jury. The facts in this case, which were agreed on by the parties, are substantially as follows: That appellee is in possession of the lands, the one-fifth interest in which is sued for, containing two hundred and forty acres, and that said! land constituted a portion of the real estate left by Grissom C. Bird, who died intestate in Jackson county, on the-11th of October, 1862. John S. Bird, a son of said Grissom C.

Bird, and one of his heirs, was appointed his administrator, and qualified as such on the 10th day of” August, 1864. That John S. Bird, on the 2d of December,, 1867, upon petition filed in the County Court of Jackson county, therein setting forth that a sale of the real estate of Grissom C. Bird, deceased, was necessary in order to-pay the debts.of said estate, and that said Grissom C.

Bird left a considerable personal estate,,but that all of it had been consumed in paying the debts of said estate and the costs of administration, obtained an order from the County Judge of said county for leave to sell the real estate of said Grissom C. Bird, deceased, including the lands-above mentioned ; that said John S. Bird, on the 6th of January, 1868, offered said .real estate at public sale, and that it was bid off by I). C. Dawkins, and subsequently deeded by said Dawkins to Mary J. Bird, the wife of John S. Bird ; that George W.

Jones, on the 5th of January, 1882, instituted a suit in the Circuit Court of Jackson county against the said John S. Bird individually, and on the same day caused an attachment to issue in said suit, and on the next day said attachment was levied on the one-fifth individual interest of John S. Bird in said lands ; that William C. Bird, Ellen M. Bradwell, Martha Reagan, and the administrator of Charles M. Compton, deceased, the said Mary, Ellen, Martha and Charles being also heirs of Grissom C.

Bird, instituted on the 21st of July, 1882, a suit in chancery in the Circuit Court of Jackson county against the said John S. Bird as administrator of Grissom C. Bird, and Andrew Scott as administrator of Mary J. Bird, and charged in their bill that the sale of the lands to D. C. Dawkins and Mary J. Bird was fraudulent, that the personal property of Grissom C. Bird, deceased, was more than sufficient to pay all the just debts and liabilities at the time of his death, and that John S.

Bird had, by various misrepresentations, endeavored to defraud his co-heirs out of their share of said estate ; that the sale of said real estate was not necessary to pay the debts of said estate, and that John S. Bird, in consequence of his mal-administration of the estate, was indebted thereto in the sum of $4,077.76, and prayed that the sale of the lands to D. C. Dawkins and to Mary J. Bird .be set aside as fraudulent and void; that on the 26th of January, 1888, the Chancellor made an interlocutory decree m -said eause, declaring the sale of said lands to Dawkins and Mary J.

Bird fraudulent and set the sale aside, and on the ■f22d day of March in the same year made a final decree adjudging and directing that said lands be sold' by Frank 'Philips, Master, and that said Master pay over the proceeds of said sale equally to the heirs, except the share of ■John S. Bird, which should not be paid to him until he -paid his indebtedness to said estate, and upon his failure to - do so for thirty days then his share to be equally divided ..among the other heirs ; that said Master on the 7th of May., 1883, sold said lands in pursuance of said decree to 'William 0.

Bird for $1,000, and divided the proceeds arising therefrom among the heirs of Grissom C. Bird, except .John S. Bird, who failed to pay his indebtedness to said estate, and on the 30th of May, 1883, the Chancellor made a -decree confirming the sale of said lands ; that George W. ■Jones on the 14th of November, 1883, obtained a judgment ¿against said John S. Bird in his said suit for $2,367.69, and on the 23d of November, 1883, caused an execution to be ¡issued and levied upon the undivided interest of said John iS.

Bird in said land; that on April 7th, 1884, said undi-vided interest was sold by the Sheriff of said county by -virtue of said execution and was purchased at ■ the sale ■thereof by the appellant for $150, and a deed thereto was -executed to the appellant—bearing date April 7th, 1884, .■and recorded in the records of Jackson county on the 12th of December, 1885 ; that appellee on the 16th of. March, 1885, purchased the said lands of William C.

Bird and re-ceived from him a deed of same date, which was recorded •on the 18th of May, 1885 ; that appellee had notice of the -sale of the undivided one-fifth interest of John S. Bird in the lands under the execution of said .G-eorge W. Jones at "the time he purchased the lands from Wm. 0. Bird. The '.appellant received no deed from Andrew Scott as Sheriff for said lands under his purchase at the execution sale thereof until after the purchase of the lands by appellee and the recording of the latter’s deed; but appellee had notice of appellant’s purchase. That George W. Jones was not a party to the suit of Wm.

C. Bird and others against John S. Bird and Andrew J. Scott, as administrators respectively, of Grissom C. Bird and Mary J. Bird. The court found for the appellee. The appellant moved for a new trial on several grounds which it is unnecessary to set forth at length. The court denied the motion and appellant excepted. The errors assigned are: 1st. Court erred in overruling the appellant’s motion for a new trial. 2d. The court erred in rendering a judgment in favor of appellee against appellant. Begarding the question as involved we can see no reason why such interest should not be levied on by attachment.

It is true that the levy was subject to be defeated if it should be found necessary to resort to the land to pay the debts of the intestate, but the levy of the attachment on land does not dispossess the administrator, McC.’s Dig., §18, p. 114; nor would it interrupt or interfere with the administration of an estate in any way. Upon authority, however, as well as principle, such an interest is attachable. Proctor vs. Newhall, 17 Mass., 81; 16 Ohio, 271; Freeman on Executions, §188.

Another question is, can this lien, so created, be subordinated to the claim of the co-heirs of the defendant in attachment, who is also the administrator of the estate of their deceased father, arising to them from the fraudulent administration of the estate by such co-heir and administrator ? This could be done only on the theory that where one of the heirs to an estate is the administrator thereof, that his co-heirs have an equitable lien on his interest for the payment of their respective shares. We have been unable to find such a principle.

He stands, it is true, in the relation of a trustee to his co-heirs, but no lien arises from this relation on his undivided interest in the estate for any liability or indebtedness to them which he may, by mismanagement of his trust, incur. As William C. Bird and the other complainants in the chancery suit -instituted for setting aside the fraudulent sale made by the administrator, John S. Bird, had no lien on John S. Bird’s individual interest as an heir in the land, their decree setting aside the sale to Dawkins and the conveyance to John S.

Bird’s wife, gave them no priority over any other creditor for satisfaction of their claim out of his interest in the land. Bump on Fraudulent Conveyances, 552; Freeman on Executions, §434 ; Day vs. Washburne, 25 Howard, 552 ; Robinson vs. Stewart, 10 N. Y., 89 ; 2 Ind., 189 and 642. At the time this decree, as well as when the subsequent one in the same cause for the sale of the land and application of the proceeds of John S. Bird’s interest to his indebtedness to the complainants therein was made, the attachment in Jones’ action had been levied upon the land.

It was competent for Jones to do this, and proceed to judgment and sell the land ; and after a sale under such judgment for the purchaser at such sale to raise the question of fraud in the sale to Dawkins and conveyance to Mrs. Bird. Bump, F. C., 517, 518; Freeman on Judgments, §350; Chetauqua Co. Bank vs. Risley, 19 N. Y., 369 ; Scott vs. Purcell, 7 Blackford, 66. The interest was attachable. Proctor vs. Newhall, 17 Mass., 81; Lessee of Douglass vs. Massie, 16 Ohio, 271; Freeman on Executions, §183.

Upon the assumption that the sale to Dawkins, and his conveyance, were fraudulent, the lien of Jones’judgment relates back to the date of the levy of the writ of attachment as against John S. Bird, Dawkins and Mrs. Bird, and any one claiming under themy or any of them, who is not a purchaser for value and without notice of the fraud. There is no such purchaser, for "William C. Bird did not’ purchase from any. grantee of John Bird, nor did he purchase without notice of the fraud, but he not only purchased the undivided one-fifth interest in controversy as the property of John S.

Bird, but did so (as we must necessarily conclude from the above statement of the facts) with full knowledge of the fraud. The appellee, Solomon, does not claim title under any fraudulent grantee of John S. Bird, but does claim title mediately under John S. Bird, and not only did he have,, before purchasing, knowledge of the execution sale under Jones’ judgment, which may have been sufficient to put him on actual notice of the fraud and the attachment, but the judgment, relating, as it does, back to the attachment, was to W. C.

Bii’d, and these being constructive notice to both of them of the lien of the attachment (Budd vs. Long, 18 Fla., 238) the appellee is bound by it, unless there is-something in the law applicable to this particular class of cases which deprives the attachment or judgment of its-effect as-such notice. Any. one purchasing under the decree of sale in the chancery cause, was bound to take notice of its contents and effect, and from the statement of the case it is clear that the decree of sale recognized John S.

Bird as having an interest in the land, and proposed to-subject its proceeds to the payment of his debt to the complainants, if he did not otherwise satisfy such indebtedness,. Any person who might purchase was bound to take notice of any prior legal lien on the land or on the interest of any part owner thereof. It may be admitted that the decree of sale became a lien from its date, March 22,1883, or, for the sake of argument, if desired, from January 26, of the same year, when the decree setting aside the administrator’s sale and the conveyance to Mrs. Bird was made ; no more can be claimed.

The purchaser under this decree was bound to take notice of all prior liens against the interest in question, and assuming the fraud spoken of and ascertained by the decree of January 26, the attachment by Jones was a legal lien upon the undivided interest of John S. Bird. As Jones recovered a judgment the lien thereof relates back to the levy of the attachment and appellant’s title is consequently superior to the title of the appellee which is founded on a decree subsequent in time and effect to the Jones’ attachment, though prior in time to his judgment. Drake on Attachment, sec. 221; Lambert vs.

Kipp, 9th Fla., 60.

Though noc satisfied that prior to the recovery of a final judgment against the fraudulent grantor, an attachment is a basis for proceeding, even in equity, to set aside an alleged fraudulent conveyance of real estate, we still do not doubt, that whenever there has been such final judgment ascertaining the indebtedness, the judgment lien relates back to the date of the levy, as against the judgment debtor and his fraudulent grantee, or as against any one purchasing the real estate as the property of the judgment debtor subsequent to the attachment, as was the case here ; nor have we any doubt that the title of the purchaser at a sale under the judgment dates as against such parties from the date of the levy of the attachment.

McMinn vs. Whelan, 27 Cal., 300 ; Bagley vs. Ward, 37 Cal., 121; Wilson vs. Forsythe, 24 Barbour, 105 ; Dodge vs. Griswold, 8 N. H., 425 ; Owen vs. Dixon, 17 Conn., 492; Weil vs. Lankins, 3 Neb., 384; Chetauqua vs. Risley, 19 N. Y., 369. Under the agreement as to the facts of this case the appellee may be considered as having introduced the decree declaring the conveyance a fraud; no further proof of it was necessary. 19 N. Y., 369.

Whether we regard the decree as one setting it aside as void as to creditors, or as a fraud upon the other heirs simply as heirs, it is a part of his title. .The judgment is reversed and a new trial granted.