21 Fla. 584 | Fla. | 1885
Lead Opinion
delivered the opinion of the court:
This bill was filed by Mary'S. Benner in her own right, and Mary S. Benner and F. M. Bonta as executor and executrix of Hiram S. Benner deceased, and Ella Benner, Ida Benner and Mary Benner, minor children of the said Hiram S. Benner, by their next friend, J. W. Archibald, of the County of Duval and State of Florida, and Laura Bonta and E. M. Bonta husband of the said Laura, and Charles E. Benner of the State of New York, and Fanny Duelos of the State of New Jersey, against Daniel E. Kendall, Susan E. Kendall, Caroline C. Keridall and Elizabeth Upham, executors of the estate of Isaac C. Kendall of the State of New York, and George "W. Hunt of the State of Florida..
The bill alleges that the complainants are owners of and have an indefeasible title to.a tract of land lying and being in the State of Florida, in townships 22 and 28 south, and ranges 34, 35 and 36 east, containing forty-three thousand acres, and that they are now in full and peaceable possession of the same; that the defendants, Daniel E. Kendall, Susan E. Kendall, Caroline C. Kendall and Elizabeth
The bill prays for an injunction against the defendants restraining them from further proceeding and from selling the said land until the further order of the court. There are no exhibits of any kind referred to in said bill in proof of title, nor any affidavit setting up title in the complainants or for what length of time they have been in possession of said tract of land. On this bill the Chancellor granted an order that the decree directing George W. Hunt to sell the land mentioned in said decree be suspended until the further order of the court.
On 28th of October defendant filed an answer setting up—
1st. That they were advised by counsel that said bill could not be maintained and no injuntion should issue to enjoin the entering of a decree in a chancery suit regularly made by the court in another cause on May 3d, 1885.
2d. That the defendants are the representatives of Isaac 0. Kendall, deceased, and holders of a valid note and mortgage made by Joseph Delespine to whom the lands mentioned were granted by the Spanish Government in 1817, the said mortgage regularly foreclosed and the lands therein described decreed to be sold. That Delespine and those
The respective counsel for complainants and defendants, agreed in writing to submit the “above case as to dissolution of injunction before the Hon. "W. A. Cocke on Friday,, November 14th, 1884.”
Subsequently counsel made another agreement in writing-to submit the motion to dissolve the injunction on the25th-: of November.
On same day the complainants filed their replication to. the answer of defendant.
On the day last mentioned the Judge, Hon. W. A. Cocke,, ordered that the injunction be dissolved.
The complainants in their petition of appeal assign as. error the dissolving of the injunction.
At the hearing of the motion to dissolve, the complainants, did not attempt to prove title in themselves by any evidence-of any kind. Complainants before asking the court to remove a cloud from their title must actually have a title.. If there is no title there can be no cloud. “ The party aggrieved must actually have a title which is embarrassed or to become so by the threatened cloud.” High on Injunctions, vol. 1, sec. 380.
The bill alleges that the defendants claim a right to sell the property under a decree of foreclosure ot a mortgage' made by one Joseph Delespine. It does not allege that said.
Decree is here rendered dismissing the bill.
Dissenting Opinion
delivered the following dissenting •opinion:
I concur in the opinion oí the Chief-Justice that no showing was made by the complainants, Benner et al., entitling them to an injunction, and that it was properly dissolved. I do not think, however, that since the passage of chapter :3432, entitled “an act in relation to injunctions,” approved February 12th, 1883, a court of equity is ousted of its jurisdiction to enjoin a sale of land by the failure of the bill t© •show that the person as whose property it is attempted to «ell ever had any interest in the land. The purpose of the
In view of the absence of Judge VanValkeuburgh, who-is not well enough to be in attendance upon the court, I think it unnecessary to say more, as nothing can be taken as settled by this case outside of the doctrine covered by the first head note, and the disposition made of the bill.