Kearley v. Crawford

Davis, C. J. J. T. G. Crawford and Philip S. May, on August 2, 1932, commenced a civil action at law against Thomas E. Walton, in the Circuit Court of Palm Beach County. On February 13th, 1933, final judgment was entered therein for a recovery of $13,203.20. Execution was *44 thereupon issued against Thomas E. Walton based on the judgment. The present suit was' a proceeding in equity brought by the residuary legatees and trustees under the will of Martha E. Walton, deceased, for an injunction against the sheriff’s proposed sale under the Thomas E. Walton judgment and execution, of a one-quarter interest in lands of the estate, alleged to have passed to Thomas E. Walton under the will, it being claimed in the bill of complaint that Walton had, before judgment was rendered against him, renounced his devise under the will, as well as his rights as an heir at law, so as' to make the execution against him ineffective to involve his initial interest in the Martha E. Walton estate. Tjie Chancellor dismissed the bill for want of equity and complainants below have appealed from that order.' By the will of Martha E. Walton, deceased, the residuary estate was devised to her four children, one of whom was' the judgment defendant, Thomas E. Walton. About six months after the institution of the common-law. suit against him by Crawford and May, but only about nine days before the entry of judgment against him in that suit, Thomas E. Walton filed and had .recorded in the County Judge’s' office in Palm Beach County, his solemn renunciation in express terms, of the devise made to him by the will, as well as all of his rights as an heir at law in the estate of Martha E. Walton, his mother. Conceding, as we must, that a correct statement of the law is to the effect that an election to take under or against a will is a personal right of the legatee or devisee, and that it is one that cannot be controlled by his creditors (Schoonover v. Osborne, 193 Iowa 474, 187 N. W. Rep. 20, 27 A. L. R. 465), the rule is that an injunction will not issue to restrain the sale of property under a valid judgment and *45 execution, except upon a clear right shown by complainant, and then only upon an unquestionable, or reasonably clear, equity. Davidson v. Seegar, 15 Fla. 671; Shalley v. Spillman, 19 Fla. 500. In this case the relief prayed was for an injunction against the sale by the sheriff under the execution against Thomas E. Walton, and to restrain the appellees, as holders of the judgment, from asserting any lien on the property levied on. It did not appear from the complaint that the appellants at the time of the filing of the bill, or the amendment to it, owned the title to the property in controversy, nor that a sheriff’s deed to Thomas E. Walton’s alleged one-fourth interest in the land levied on, if executed pursuant to sale,' would be any more of a cloud on the property than the judgment against him would be without - a sale under execution. So the motion to dismiss the bill of complaint as one brought to prevent a cloud being cast on appellant’s supposed title_to the land levied on by the sheriff was properly sustained by the Chancellor and should be affirmed. See Morgan v. Dunwoody, 66 Fla. 522, 63 Sou. Rep. 905; Brickell v. Trammell, 77 Fla. 544, 82 Sou. Rep. 221. Affirmed. Whitfield, Terrell and Buford, J. J., concur. Ellis and Brown, J. J., dissent.