Davis v. Leonard

Supreme Court of Florida

Davis v. Leonard

63 So. 584, 66 Fla. 351

DecidedNovember 11, 1913

StatusPublished

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Bluebook

Davis v. Leonard, 63 So. 584, 66 Fla. 351 (Fla. 1913).

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Opinion

Cockrell, J.

Upon a bill alleging that the complainant Leonard, had purchased from Mrs. Davis, the owner, a one-third interest in a newspaper plant, and that Mrs. Davis and her husband, after recognition of his interest therein for $pme time by accounting and turning oyer to him his share of the profits therefrom, had suddenly denied him any rights therein, and were diverting the income to their own uses and impairing the finances of the plant, it was ordered that a receiver be appointed pendente lite, unless the respondent give bond conditioned to preserve the assets of the property, and to pay what might thereafter be decreed to be due the complainant. The defendants have appealed from this order.

It is argued that there is no joint ownership of the property because the uncontradicted affidavits of the husband and wife show that the husband did not consent to the sale by Mrs. Davis to Leonard.

The bill of complaint shows that a bill of sale was signed by the wife and witnessed by the husband, who subsequently demanded of Leonard that he be allowed fifty dollars a month as salary from the business. In the language of this court in Tunno v. Robert, 16 Fla. 738 text 748, “we think it was a joining within the meaning of the statute, even admitting its application to the present case.”

Because a married woman may not become a partner in all aspects of that term, it is insisted that a receiver may not be appointed over the joint assets. This does not necessarily follow.

The facts here alleged constitute a clear case of the use and enjoyment by one tenant, to the entire exclusion of her co-tenant; under our constitutional provision the fact that the tenant so ousting the other is a married woman, makes a case peculiarly adapted to a court of equity, and [353]*353there is ample showing as to waste of the joint assets. The order nisi before the appointment of a receiver, seems to have been drawn, with the case of Low v. Holmes, 2. C. E. Green (17 N. J. Eq.) 148, before the court, a case singularly in its facts like this, not only in the joint ownership, but in the subject-matter,. the property involved.

Order affirmed.

Shackleford, O. J., and Taylor, Hocker and Whitfield, J. J., concur.

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Cockrell, J.

Upon a bill alleging that the complainant Leonard, had purchased from Mrs. Davis, the owner, a one-third interest in a newspaper plant, and that Mrs. Davis and her husband, after recognition of his interest therein for $pme time by accounting and turning oyer to him his share of the profits therefrom, had suddenly denied him any rights therein, and were diverting the income to their own uses and impairing the finances of the plant, it was ordered that a receiver be appointed pendente lite, unless the respondent give bond conditioned to preserve the assets of the property, and to pay what might thereafter be decreed to be due the complainant. The defendants have appealed from this order.

It is argued that there is no joint ownership of the property because the uncontradicted affidavits of the husband and wife show that the husband did not consent to the sale by Mrs. Davis to Leonard.

The bill of complaint shows that a bill of sale was signed by the wife and witnessed by the husband, who subsequently demanded of Leonard that he be allowed fifty dollars a month as salary from the business. In the language of this court in Tunno v. Robert, 16 Fla. 738 text 748, “we think it was a joining within the meaning of the statute, even admitting its application to the present case.”

Because a married woman may not become a partner in all aspects of that term, it is insisted that a receiver may not be appointed over the joint assets. This does not necessarily follow.

The facts here alleged constitute a clear case of the use and enjoyment by one tenant, to the entire exclusion of her co-tenant; under our constitutional provision the fact that the tenant so ousting the other is a married woman, makes a case peculiarly adapted to a court of equity, and [353]*353there is ample showing as to waste of the joint assets. The order nisi before the appointment of a receiver, seems to have been drawn, with the case of Low v. Holmes, 2. C. E. Green (17 N. J. Eq.) 148, before the court, a case singularly in its facts like this, not only in the joint ownership, but in the subject-matter,. the property involved.

Order affirmed.

Shackleford, O. J., and Taylor, Hocker and Whitfield, J. J., concur.

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63 So. 584, 66 Fla. 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-leonard-fla-1913.

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