21 Fla. 508 | Fla. | 1885
delivered the opinion of the court:
The bill does not allege that Mrs. Keil is in possession. Its statements given above are sufficient as to the possession of Mrs. West, and her sisters, to give the court jurisdiction. Freeman on Cotenancy, §485. In Jenkins vs. Van-Schaack, 3 Paige, 242, cited for apppellant, it is held that it is not necessary to allege in the bill that complainant is in possession of the premises, as that fact is presumed from the allegation, that the parties are seised in common. Hitch
It is objected that the bill does not set out sufficiently the respective titles and shares or portions of the parties, and how they hold the same. It does seem to us that upon
II. It is claimed that the subpoena is defective in not containing “ a description of the premises,” and not stating that the suit was for partition. The statute does not require that the subpoena shall contain a description of the premises. When the defendant is not a resident of the circuit in which the suit is instituted, or is unknown, or his place of residence is unknown, it requires that an order to appear and answer shall be made and that “ such order or notice of the same ” shall be published and contain a description of the premises. It is, however, true, the statute provides that the subpoena shall “ state that the bill is filed for partition.” This subpoena is defective in not so stating. This defect, like the omission of the officer, to show the original at the time of delivering a copy to Mrs. Keil, has been made immaterial by her voluntary appearance in the cause and the entry of such appearance by the clerk. There is nothing in the record to suggest that her appearance was other than purely voluntary, or that any attempt was made to mislead her. It is too late to discuss defects in such process or in the service or return thereof after its
III. "We do not gainsay the doctrine that a complainant can take no decree against a defaulting defendant except such as his bill will sustain. If it states no case he is entitled to no decree. Suffering a decree fro confesso is an admission of the facts which are well pleaded, but the decree does not aid or supplement a bill which does not state a good cause of action. Baldwin vs. Stribling, 21 Fla; 25 Ills., 266; 40 Ala., 446 ; 2 A. K Marshall, 123.,
In Lease vs. Carr, 5 Blackford, 353, (referred to in Shaw vs. Parker, 6 Blackford, 345, cited by appellant’s counsel,) under a statute so general in its provisions as to be regarded by the court as continuing the usual rules of equity as to the case to be stated by a bill of partition, it was held that the petition should have shown the nature and extent of the interest of the petitioner in the land, and that he held in common with the defendants; that it should have stated their interest in the premises so far as it was known to the petitioner. . “On these points,” say the coui’t, “ the petition is silent. It merely requests the appointment of commissioners to decide the land designated in the notice, between the petitioner and George Lease and the unknown heirs of William Lease, deceased.” It cannot be claimed that the bill in question has any such aggravated imperfections. In Godfrey vs. Godfrey, 17 Ind., 6, there were several defendants, and it was alleged in the petition that the ancestor left children and grand children to whom the land descended one of them being the petitioner, and the other being among the defendants, and that two other defendants each claim to have title to the land or some part thereof, but that the nature of their claim and title and the amount of their respective interests the petitioner did not know, nor did he know whether they had an inter
IV. It is contended that there was no proof of title before the master. Assuming that Mrs. Keil had the right to appear before the master and require final proof of the deed, it is a fact that though she produced it, in compliance with a subpoena duces tecum, and it was read in evidence, she made no objection either as to the proof of its execution or as to the non-production of the last will and testament of Hart. It is too late to except for the first time after the case reaches this court. Simmons vs. Spratt, 20 Fla., 496; Emerson vs. Ross, 17 Fla., 125. The production of deeds in cases of partition is not unusual. 2 Daniel Chy. Pl. & Pr., 1154.
In Hamilton vs. Morris, 7 Paige, 39, a partition suit where a decree pro confesso was taken against unknown owners of certain undivided shares of the premises, it was held that the master should require the complainant to produce abstracts of his title as a tenant in common in the premises, and to trace it back to the common source of title of the several tenants in common, and that the master should, as far as practicable, give an abstract of the conveyance of the several univided shares or interests of the parties from the time the several shares were united in one
The testimony taken by the master shows that Mrs. West occupies part of the premises, and nothing as to any adverse holding.
V. The decree of partition sufficiently passes upon the rights of all the parties, and decrees to those entitled a separate share, as warranted by the bill and proofs, and does not leave this to the judgment or discretion of the commissioners. It decrees that appellant failed to appear and set forth her interest and that the evidence shows she had none, and that each of the three sisters is entitled to a third part in fee simple, that partition be made, and appoints commissioners to make it and to assign to each her share. Ho more is essential.
VI. The commissioners’ report under the decree of partition bears date July 9th, 1884, and the affidavit required to be made by them before acting is dated the next day. The report states that they took the oath before going on the premises, and examining the same, and there is an affidavit of one of the commissioners, which was used on the motion to open the decree, stating that the report was drawn by him, and that it is erroneously dated the 9th instead of the 10th, and that their duties were performed after they qualified. We conclude that the oath was taken before they acted.
VII. We see nothing in the record to relieve the appellant from the imputation of laches in the matter of answer
The fact that she did not understand the summons to be defective is no reason for avoiding her appearance, nor does it excuse her for not answering. By appearing she seems, to have understood what the summons required. There is nothing to show that she learned its requirements otherwise than from the paper itself. To have so learned then she must have read it, which shows some intelligence. Her general assertion of want of intelligence is not corrobo
Moreover, we do not think she has exhibited in her petition such a meritorious defence as would justify opening the •decree had she shown due diligence.
It was never sufficient in a case of this kind for the defendant to merely deny the complainant’s title. He had to answer the bill, and if he proposed to set up a title adverse to complainant, or to dispute complainant’s title, he had to -discover his own title or show wherein the complainant’s title was deficient. The titles being spread upon the pleadings, if the court could see that there was no valid legal objection to complainant’s title, there was then no reason why the court should not proceed to order partition. • When the statement of the title showed a disputed or doubtful legal
Barring the effect of our statute, it must be that a party-in default would be required to make as good a showing as to the legal title to open a decree, as was necessary to send the case to a court of law; and, under the statute and the-above decision of this court, the showing as to merits must be of facts constituting a defence and in a distinct and satisfactory manner. Taking her own statements, she and her-husband entered into possession under an arrangement of purchase from Hart, whose title she cannot deny having recognized it in 1866, when she claims to have paid the balance of the purchase money. The deed is dated December 81st, 1866, and there is no-room for her to claim an adverse
The statement that she has remained in the undisturbed and undisputed possession of the land, and in control of the same, renting part thereof from time to time to different tenants, does not show that she ever disputed or disturbed the rights of her children, or ever brought home to them the fact that she, their mother, who had received
The fact that while in possession under the circumstances stated, she permitted this property to sell for taxes, and holds a tax deed, creates no title against the daughters. Being their mother and having so long acted really as their trustee and protector, she cannot be permitted to thus suddenly assume a hostile attitude and deprive them of their property. Bur. on Tax., 352 ; Blake vs. Howe, 15 ; Am. Decisions and note: 33 Cal., 408 ; 38 Cal., 216 ; 24 Mich., 360. There is nothing to show what amount has ever been expended on the property or what rentals she has received.
VIII. There was a decree of sale, and a sale thereunder, and the deed was made to Hildebrandt, on the order of L’Engle, to whom property was knocked off. The sale was confirmed. Hildebrandt files a petition stating, among other things, that the deed was made to him, and that the appellant is in possession of the property, and refuses to deliver the possession thereof to him, and praying for a writ of assistance directing the sheriff to remove her and put him in possession. Appellant answered, alleging in
The appellant was not entitled on this application to renew the contest as to her title, which had been disposed of by the order on her petition, if not by the former decrees in the cause. The answer was a waiver of any informality as to the proceedings to obtain the writ. We do not mean to say, however, that they were not apt and sufficient. We see no reason why the writ should not have been granted. 4 Johnson’s Chancery R., 608 ; 82 Ill., 22; 13 N. J. (Eq.), 220; 1 H. & J., 187; 14 N. J. (Eq.), 38; 13 Ibid., 227 ; Hopkins, C. R., 422. The mere commencement of the ejectment did not oust the court of equity of its jurisdiction or bar the remedy. 82 Ill., 22. Hot even an election of remedies was asked for.
We have found it unnecessary to consider the pleadings and testimony in behalf of the appellees on the motion to open the decrees. They are, however, not comforting to appellants.
What we have said practically disposes of the petition for a rehearing.
The decrees and orders appealéd from are affirmed.