CLARENCE W. HEWITT AND ELIZABETH HEWITT, APPELLANTS,
v.
PUNTA GORDA STATE BANK, APPELLEE
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The Florida Supreme Court reversed a lower court's denial of a motion to dismiss a creditor's bill alleging fraudulent conveyances by judgment debtors. The Court held that the bill's allegations were insufficient to state a valid claim either as a bill to set aside fraudulent conveyances or as a creditor's bill, lacking required elements such as allegations that the judgment debtor had only equitable title or that the conveyances were obstacles to judgment enforcement.
The bill is insufficient as either a creditor's bill or a bill to set aside fraudulent conveyances. A creditor's bill must allege that the judgment debtor had only equitable title and that the fraudulent conveyances are obstacles to full enforcement of the judgment, with a prayer to vacate, cancel, or remove such conveyances as clouds on title. The bare allegation of transfers made to hinder, delay, and defeat judgments is insufficient.
“The bill in this case is hardly sufficient as' a creditor's bill in that it nowhere alleges that the judgment debtor had only an equitable title to the property.”
Establishes the first critical deficiency: failure to allege judgment debtor's equitable title only.
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Join FLexlaw to unlock all legal intelligenceThe appellants obtained judgments against judgment debtors and filed a bill in equity alleging that certain property transfers were made for the purpo…
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The bill in this case is hardly sufficient as' a creditor’s bill in that it nowhere alleges that the judgment debtor had only an equitable title to the property. George E. Sebring Co. v. O’Rourke 101 Fla. 885, 134 So. 556; Cowdery v. Herring 143 So. 433. Nor does the bill allege that the fraudulent conveyances are obstacles to the full enforcement of the judgment, not is there any prayer for the vacation or cancellation of such fraudulent conveyances, nor to remove them as clouds on the title to the property. Balsey v. Union Cypress Co. 110 So. 263, 92 Fla. 706; Punta Gorda State Bank v. Wilder 112 So. 569, 93 Fla. 301. The bill alleges that transfers of certain property were made for *40the purpose of hindering, delaying and defeating complainant’s judgments. This is in substance about all that the bill alleges. The only prayer of the bill was that the property be decreed to be the property of the judgment debtors. While no objection to the prayer of a bill can be raised by a motion to dismiss' or demurrer,’ the allegations of the bill in this case are not sufficient under the authorities' above cited, to give the bill equity, either as a bill to set aside fraudulent conveyances, or as a creditor’s bill.
The court below should have sustained appellant’s motion to dismiss the bill, and its failure to do so constitutes error for which the order appealed from must be reversed. The motion to dismiss sthe appeal will be denied.
Whether a motion to dismiss, under the 1931 Chancery Act, should be considered, for most practical purposes, as the equivalent of a general demurrer, so that the Chancellor would be authorized to grant the motion with leave to amend, or require an amendment within a specified time to meet the objections raised by the motion to dismiss, otherwise the bill to stand dismissed, are questions which we are not called upon to decide in this case, though they may arise upon further proceedings in the court below.. The writer is inclined to think the Chancellor has this authority. See in this connection Section 33 of the 1931 Chancery Act and Mr. Edward McCarthy’s Annotations of that Act recently published, pages 58-59.
Reversed and remanded.
Whitfield, P. J., and Buford, J., concur.
Davis, C. J., concurs in the opinion and judgment filed under Rule 21A.
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Riesen v. Md. Cas. Co., 153 Fla. 205 (Fla. 1943)…ble relief. Armour Fertilizer Works v. First National Bank, 87 Fla. 436, 100 So. 362; B.L.E. Realty Corp. v. Mary Williams Co., 101 Fla. 254, 134 So. 47; Geo. E. Sebring Co. v. O’Rourke, et al., 101 Fla. 885, 134 So. 553; Hewitt v. Punta Gorda Bank, 108 Fla. 39, 145 So. 883; Hillsborough County v. Dickenson, 125 Fla. 181, 169 So. 734; Stewart v. Manget, supra; Miller, et al., v. Security Peoples Trust Co. 142 Fla. 434, 195 So. 191; Bradshow v. American Advent Christian Home, 145 Fla. 270, 199 So. 329. Our…
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Lykes Bros. Fla. Co. v. Ziba Glenn King and Helen G. King, 125 Fla. 101 (Fla. 1936)…Chancellor makes his order sustaining such motion conditioned upon an amendment of the bill to state a better cause in equity. M. Bright Farms, Inc., v. Broward County Port Authority, 117 Fla. 361, 158 Sou. Rep. 70; Hewett v. Punta Gorda State Bank, 108 Fla. 39, 145 Sou. Rep. 883; Pohl Beauty School, Inc., v. City of Miami, 118 Fla. 664, 159 Sou. Rep. 789; Warren v. Tampa Mortgage Investors Co., 112 Fla. 555, 150 Sou. Rep. 738; Wettstein v. Gilbert, 105 Fla. 427, 141 Sou. Rep. 297. Circuit Courts, as cour…
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State ex rel. L. E. Moore v. Gillian, 141 Fla. 707 (Fla. 1940)…Co. v. Orange County, 79 Fla. 208, 84 So. 83; Raulerson v. Peeples, 79 Fla. 367, 84 So. 370; South Fla. Citrus Land Co. v. Walden, 59 Fla. 606, 51 So. 554; White Engr. Co. v. Peoples St. Bank, 81 Fa. 35, 87 So. 753; Hewitt v. Punta Gorda State Bk., 108 Fla. 39, 145 So. 883.” McCarthy’s Chancery Practice Act, page 76. The amended bill of complaint in effect alleges that respondents, holding themselves out as “salary buyers” are engaged in the short loan business and unlawfully exact and require the paymen…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- George E. Sebring Co. v. O'Rourke, 134 So. 556 (Fla. 1931)
- Florence v. Cowdery, 106 Fla. 567 (Fla. 1932)
- Punta Gorda State Bank v. Wilder, 93 Fla. 301 (Fla. 1927)
- Balsley v. Union Cypress Co., 92 Fla. 706 (Fla. 1926)