McKeown v. Coogler , 18 Fla. 866 ( 1882 )

The Chief-Justice

delivered the opinion of the court.

It is an admitted rule that a debtor may give preference to one creditor over another, even if the debtor is in failing circumstances, to the prejudice of the other creditors, there being no fraud on the part of the favored creditor.

There is in the ' answer a direct denial of the fraud alleged ; not only this but the testimony utterly rebuts any idea of fraud on the part of Coogler, whose claim is shown not only by his own testimony, but by the testimony of Lowrey, to be an honest one for supplies furnished to L. & St. C. to enable them to raise the crop and to build a tobacco house on the place in which to care and preserve the tobacco, and a small, cheap dwelling-house for the use of the place. These may ivell be presumed from the testimony to have all been necessary to carry on these “ farming operations,” and therefore come within the act of 1870, (Ch. 1739.) The fact that the “ lien ” was given in writing and recorded several months after the advances were made cannot affect its validity, no credit having meantime been extended by appellants, and no other liens having intervened. The paper creating the lien in favor of Coogler is in the nature of a mortgage, and, when duly recorded, is effectual against other liens attaching afterwards.

Upon the case made by the pleadings and proofs we cannot say that any fraudulent intent is established against Coogler in respect to the “ lien.” Nor do we discover that Coogler has taken any steps looking to a foreclosure of his lien, but has had judgment in an' action at law for the amount of his claim, which he is seeking to enforce by a levy upon the property in question.

One of the prayers of the bill is that the sale of the tobacco by the sheriff under the execution be enjoined, because the appellant’s attachment was levied upon it before the judgment was entered and the execution issued, and the sheriff threatens to sell under the execution, disregarding the attachment levy.

There is nothing here disclosed which calls for the interposition of the jurisdiction of a court of equity, and it has .been held by this court that the remedy at law is ample and convenient, and that, therefore, the chancery court has no jurisdiction thus to interfere with the process of the court of law. Love vs. Williams, 4 Fla., 126; Robinson vs. Yon, 8 Fla., 350.

By the general rules of law and practice, as well as by express statute, the courts of law have ample power to control their process and their officers in matters of this character, and, besides, if the sheriff sell property under a junior levy, disregarding the senior, he does so at his peril.

For the reasons above stated the court did not err in dismissing the bill.

There are, however, two other features of the decree which cannot be sustained: 1. It directs Mickler as “ Receiver ” to turn over the tobacco to Lowrey & St. Clair. We understand from the record that the tobacco was in the custody of the defendant (Mickler) as sheriff under the levy of the attachment, and also of the execution. The record does not show any ground upon which the property should be discharged of these levies. Lowrey & St. Clair were not parties in this suit in equity, and there is nothing here disclosed showing that they were entitled to the return of the property to them. 2. The decree further dismisses the attachment suit, the two suits having been submitted together, and “ the attachment suit virtually depends and turns upon said injunction suit,” as recited in the decree. This is essentially affirmative relief in favor of the defendants in the chancery suit and in the attachment suit, without cross-bill, and after dismissing the suit in equity. This is nowhere recognized or tolerated in chancery practice, except in matters of account, or of such like peculiar character as to constitute an exception to the rule. Sanford vs. Cloud, 17 Fla., 557, 574-5; Wooten vs. Bellinger, ib., 289.

The facts in the chancery suit may properly have controlled the disposition of the attachment suit, and it may have been the duty of the court to dismiss the attachment suit, but if so the order of dismissal is one to be entered in the attachment suit and not in this suit in equity, in which the merits or the regularity of the proceedings in the attachment suit were not before the court.

The decree dismissing the bill with costs is affirmed, but in so far as it directs the delivery of the tobacco to Lowrey & St. Clair, and decrees a dismissal of the suit of McKeown & Keathley against Lowrey &.St. Clair, it is reversed and set aside. Each party will pay his own costs upon this appeal.