48 Fla. 271 | Fla. | 1904
(after stating the facts). — In view of the conclusion which we have reached, no extended statement of the pleadings or evidence is necessary. Neither is it advisable to discuss the errors assigned in detail. It is contended by appellant that Walter S. McNair, Thomas J. Wooten, Benjamin S. Brigg and Robert T. Hasleton were all necessary parties defendant to the cross-bill and that by reason of their absence as parties the decree was erroneous, and for that reason, if for no other, should be reversed. If this contention is sound and the parties above named were indispensable parties to the proceeding, it would follow necessarily that the decree must be reversed. Robinson, Administrator, v. Howe, Dibble & Bunce, Executors, 35 Fla. 73; Post & Flagg v. Adams, 39 Fla. 207. All persons 'whose interest, legal or equitable, in the subject matter will be affected by the decree are necessary parties. Robinson v. Hozve, supra, and authorities cited therein; 1 Foster’s Fed. Pr., section 53. Turning to the record, we find that the lease executed by said Brigg and Hasleton to Walter S. McNair, Thomas J. Wooten and Frank M. Wooten, which was reformed by the chancellor, as above stated, contains a clause to the effect that the lessors would warrant and defend the rights conveyed therein against all persons claiming under said lessors. As has already been stated, on the same day their lease was executed, the lessors executed a deed to said lands to William M. Dallam, “subject to a lease on the pine timber heretofore made to Walter S. McNair, Thos. J. Wooten and Frank M. Wooten.” The reformation of the lease as made by the chancellor inserting the right of the lessees to cut and carry away the wood and timber thereon, undoubtedly made a very material change in the lease and consequently a change in what was conveyed to Dallam in the deed. In other words, but for the reformation of the lease, Dallam would take the lands subject only to the turpentine privilege set forth in the lease as it stood and was of record. By reason of the war
It also appears from the record that although Walter S. McNair and Thomas J. Wooten had assigned and transferred all their interests in said lease to Frank M. Wooten, their co-lessee, said assignment described the same as being of record in Book E of Mortgages, page 154, of the public records of Brevard county, and said assignment also contains a general warranty clause. This being true, it follows that the rights of Walter S. McNair and Thomas J. Wooten were affected by the decree and, therefore, that they were necessary parties. The deed from Brigg and Hasleton to Dallam contains no clause of warranty and neither does the deed from Dallam and wife to appellant, therefore, Dallam was not a necessary party. See authorities cited supra.
It would seem from the decree that the chancellor, by reason of finding the equities with the cross-complainants and ordering a reformation of the lease as therein prayed, also found against the original complainant and ordered the original bill dismissed. This being true and having reached the conclusion that the decree must be reversed by reason of the absence of necessary parties defendant to the cross-bill, it follows that the entire decree must be reversed, though we express no opinion upon the merits, as It is neither advisable nor proper for us to do so.
That in a cross-bill seeking affirmative relief new parties may be added, whose presence is essential to a com
It follows that the decree must be reversed and it is so ordered, with directions to grant leave to appellees to make said Brigg and Hasleton, Walter S. McNair and Thomas J. Wooten parties defendant to the cross-bill, and for such further proceedings as may be in accordance with equity practice and with this opinion. Appellees to pay the costs of this appellate proceeding.
Carter, P. J., and Whitfield, J., concur.
Taylor, C. J., and Hocker, J., concur in the opinion.
Cockrell, J., being disqualified, took no part in the consideration of this case.
