33 Fla. 539 | Fla. | 1894
The sufficiency of the bill was not questioned in the -Circuit Court, but the bill was answered, and upon replication.being filed, testimony was taken by an examiner, and then there was a trial by referee, a decree in favor of complainant being reached without any objection being made to chancery as the forum; nor is the sufficiency of the bill, standing alone, brought in issue here; on the contrary, it is charged to have been so framed for the purpose of precluding any such controversy. The contention, however, of counsel for •appellant is that the facts presented by the answer and developed by the testimony show such a case as is exclusively for the adjudication of the title by a court of law, and ousts the jurisdiction of equity. The defense made by the answer is, in short, a denial that complainant has any interest in the property or any cotenancy therein with the defendant; and a title to the entire property acquired by defendant at a sale made in March, 1873, under an order of the county court of Duval county, applied for by an administrator de bonis non oum testamento annexo on the ancestor’s estate, for the payment of debts of the estate, and .an entry into possession under such title, and a retention pf possession, from then until the commencement of the suit, adversely, to the complainant and all persons; it being further alleged that the price bid and paid by them for the property was its fair value, and that the complainant received his share of the money
Our statute (Sections 2, 5, pp. 801-3 McClellan’s. Digest) provides (Section 2) that the bill or petition may be filed by any one or more of several joint tenants, tenants in common, or coparceners against their cotenants, coparceners or others interested in any lands to be divided, and shall set forth the description of the lands, of which partition is prayed, by metes and bounds, or other sufficient description, and shall state according to the best of the knowledge and belief of the petitioners, the names and places of resi-. dence of the several owners, joint tenants, tenants in common or coparceners, or others interested in the land, the quantity or proportionate share claimed by each, and such other matters, if any, as may be necessary to enable the court to adjudicate fully upon the rights and interests of the parties; and where the names, residence, quantity or interest or proportionate share of any of the owners or claimants of such land are unknown to the petitioners or complainants, then it shall be so stated and the suit may proceed as if such unknown persons or defendants were named in the bill or petition, and such bill or petition shall be sworn to by some one or more of the petitioners. And (Section 5) upon the bill being taken as confessed, or upon the coming in of the answers of the defendants the court shall proceed to ascertain and adjudicate the-rights and interests of the parties either by a reference to a master, by a hearing upon the pleadings and proofs, or in such other way or manner as may be-most convenient and according ■ to the ordinary rules and practice of the court; and shall also decree that partition be made if it shall appear that the parties are entitled to the same; provided, however, that when
This, statute has received the consideration, of the. court in two cases: Street et al. vs. Benner et al., 20 Fla., 700, and Keil vs. West et al., 21 Fla., 508.
In the former case, decided in 1884, the bill was dismissed by the Circuit Court without stating its- reasons for so doing; and it is said in the opinion—which concludes very properly, that such dismissal was because of the legal title attempted to- be tendered by the plea and answer—that the bare denial of complainant’s title by plea' or answer was no obstacle to the court’s proceeding according to the ordinary practice of courts of equity in partition and did not necessitate-a reference to a court of law to try the legal title;, and then observing that a defendant must answer the bill, and if he sets up a title -'adverse to the complainants or disputes the complainants’ title, he must discover-his own title or show wherein the complainants’ title-is defective, it says that the defendants, Benner, etal.y merely deny complainants’ title and allege adverse possession “founded on a written, instrument, ’ ’ butdcfc.
In Kiel vs. West et al., decided in 1885, in discussing the allegation of the bill as to complainants’ seizin in the light of the law governing the question, it was observed: That the court does not say that a bill which shows in compliance with the rule in such cases that a defendant is in possession of the premises claiming them adversely to complainants would not oust the equitable jurisdiction; but, on the contrary, as no such case was presented, it said nothing on the subject. Again, in the same case, reiterating the rule announced above as to the defendants’ answer, it is said: The titles being spread upon the pleadings, if the court could see that there was no valid legal objection to complainants’ 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 title, the court could dismiss the bill and •send the complainant to law, or retain the bill till a court of law had settled the title. Following this the construction of the statute in Street et al. vs. Benner et al., as set forth in the head-note thereto, is stated.
The meaning of the former of these decisions is, that whenever the case is properly one of’ partition, one whose bona fide object is the partition of lands among
In the case before us the complainant, claims as heir of his father whose title the defendants assert they bought at the administrator’s sale made on the application of the administrator. Piling a replication as he-did, the plaintiff manifested that he was unwilling to submit the question of title to the chancellor as a mere-matter of law, upon the facts presented by the pleadings, but wished to join issue upon the allegations of fact made1 by the answer. In so far as any issue of' fact is concerned, it can not be overlooked that the right to have the same tried by a jury was waived by the defendants. In Mississippi the obtaining doctrine is that the right to relief by partition implies joint ownership between the complainant and defendant, and can be enforced only between those in actual or constructive possession, and that other claimants must establish their right by action at law (Spight vs. Waldron, 51 Miss., 356), yet in Black vs. Washington, 65 Miss., 60, 3 South. Rep., 140, where the bill sets forth
This conclusion brings us to the question of parties -. as the next one in proper order. The facts developed by the pleadings and testimony are that the commom source of title, Mr. Charles Summers, died testate leaving surviving him a widow and five children: Charles. H., Mary S., Francis Y., Michael T. and the complain-ant Owen J. The will made the disposition shown by it of his property. We are not informed by the record whether or not he owned the land in question at the:;
This brings us to the question of the necessity that the devisees of Mr. Koopman should have been made parties defendant on his death. After the testimony had been taken, but before the reference of the cause for trial, it appears that Henry Koopman, one of the defendants, died testate April 20th, 1889, naming the other defendant, Joseph Rivas, his executor, and the cause was revived by an order of June 22nd, 1889, against such executor, to be proceeded in as though the suit had been originally instituted against him; and afterwards the cause proceeded against Rivas in his own right and as executor of Koopman. The order reviving the cause was made on petition supported
In our judgment such devisees became, on the death of Mr. Koopman, necessary parties for the purposes of partition. His executor was not a sufficient party for such purpose as the representative of their interests. In view of the fact that the executor was made a party defendant without the will being before the court, we conclude that the chancellor thought the executor to be rendered a sufficient party by the general nature and powers of the office of executor; still in disposing of this question we shall, for the purposes of this case, but -not as a precedent, regard the will as properly before us, notwithstanding any error there may be in such assumption; and we shall pass upon the question of parties with reference to its several provisions. Grenerally or independent of provisions of a will endowing an executor with special interests or powers as to real property devised to others, such an executor was entitled, as the law stood at the time of Mr. Koopman’s death, to the possession and control of such property as assets, and he could maintain ejectment to recover possession of the same (Sanchez vs. Hart, 17 Fla., 507; Eppinger et al. vs. Canepa, 20 Fla., 262), but we do not think such a trustee to be either an owner or representative of the heirs or devisees of a testator for the purpose of a partition. In such a case neither the legal title nor the beneficial interest is in him, and he can not be held .to have au
The decree must be reversed and the cause remanded for proceedings not inconsistent with this opinion. It Will be so ordered.