35 Fla. 73 | Fla. | 1895
A statement of the allegations of the original bill filed in this case will be found in the case of Howe vs. Robinson, et ux., 20 Fla. 352. After the case reached the Circuit Court under a mandate from this court, the bill was amended, and new parties were added, necessitated in part by the deaths of Calvin B. Dibble and Calvin L. Robinson. The bill under the last amendment has as complainants James Howe, and William Dibble and Jonathan Bunce, as executors of the estate of Calvin B. Dibble, deceased, and the defendants are Edward I. Robinson, administrator of the estate of Calvin L. Robinson, deceased, Elizabeth S. Robinson, Susan L. Vaught and F. A. Vaught. The statement in the amended bill as to complainants is unusual, but the real complainants, we think, are as stated.
The amended bill alleges that Susan L. and F. A, Vaught, minor heirs of Nathan and Penelope Vaught, deceased, were in February, 1861, the owners of lot six, square fifty-three, according to Hart’s map of the city of Jacksonville, said lot being bounded on the north by Monroe street, east by Cedar street, south by lot three and west by lot five in said square; and about the 8th day of said month and year, Ann West, as guardian of said minors, obtained an order from the probate court of Duval county authorizing her as such
The amended bill was answered by Calvin L. Robinson and wife, and upon the death of the former, his-administrator, Edward I. Robinson, was made a party. The defenses set up in the answer of the Robinsonsare: First, that the bill as framed is in the name of' Howe for the use of Calvin B. Dibble, who had diecL before the amended bill was filed, and on this account it should be dismissed. Second, it is denied that James Howe ever obtained any judgment, as alleged, in October, 1867, against the Florida, Atlantic & Grulfi Central Railroad Company. It is admitted that there-appears on the minutes of the Circuit Court for Duval county, under date of October 12th, 1867, what purports to be a judgment in a case entitled on the minutes, “James Howe vs. Fla., A. & Gf. C. R. R. — Assumpsit,” but for various reasons alleged it is claimed that the so-called judgment was illegal, null and void as against any one. Third, fraud is charged against James Howe in obtaining said judgment; and it is alleged that Calvin B. Dibble was not an innocent purchaser of the same without notice. Fourth, the said, judgment having been obtained in October, 1867, and the said railroad having been seized and sold, as alleged in the bill about two years after said judgment was rendered, and three years being allowed by the-statute (sec. 35, Chapter 1639) after the dissolution of a corporation in which to proceed by scire facias to-obtain the issuance of an execution, it is alleged that-Howe and all persons claiming through or under him as assignees, or representatives of assignees, of said judgment are estopped by their laches from pursuing-
The case originated in Duval county and was transferred to Putnam county on account of the disqualification of the Judge of the Fourth Circuit. After replication filed and testimony taken the court on final hearing decreed in favor of complainants on all the points of defense raised by the defendants. It was adjudged that at the time of the entry of the judgment in favor of James Howe against the Florida, Atlantic & Gulf Central Railroad Company, said company was legally seized and possessed of lot six (6) square fifty-three (53), as discribed in the bill of complaint and that the lien of said judgment after its entry attached to said lot, The court further decreed that under and by virtue of the sale and conveyance of the Trustees of the Internal Improvement Fund of the State of Florida to William E. Jackson and his associates only so much of said lot six, square fifty-three was sold and conveyed as was occupied by the said railroad company as its road-bed, and that all of said lot not embraced in and covered by the road-bed of said railroad, should be sold under and by the decree of this court to satisfy the lien of the judgment recovered by James Howe against said railroad company. The case was referred to a special master with directions to take such testimony only, offered by either of the parties to the suit, as would tend to show how much, and what part, if any, of said lot six, square fifty-three, was embraced in and covered by the road-bed of said Florida, Atlantic & Gulf Central Railroad Company, and to report to the court within
It will be seen from the foregoing statement of the bill that the complainants do not question the superiority of the lien of the bonds issued by the Florida, Atlantic & Gulf Central Railroad Company, under the Internal Improvement Act, so far as its road-bed, iron, equipment, and workshops were concerned, all of which it is alleged passed to William E. Jackson and! associates under the Bale by the Trustees of the Internal Improvement Fund. It is alleged that the lot-in question was not included in the property of the-company covered by the lien of its mortgage bonds-issued under the Internal Improvement Act and was: not in fact sold by the trustees. There can be no question on the record before us but that the road-bed of the said company was sold by the trustees in 1868, to Jackson and his associates and the testimony shows that from the time the road was constructed in 1855 or 1856 up to the time of the sale of the road by the trustees, the road-bed of said railroad extended over apart of said lot six, square fifty-three. In the decree appealed from the court adjudges that so much of said, lot as was occupied by the road-bed of said railroad was embraced in the sale to Jackson, and that the lien, of the judgment sought to be enforced extended to the-remainder of the lot. The lot, as appears from the-testimony, was one hundred and five feet square. The-court was unable to ascertain from the testimony what part of the lot was occupied by the road-bed and referred the case to a special master to report testimony on this point.
It seems to the court that there is an absence of necessary parties in this suit, and, as pointed out by counsel for appellants, if the track of the railroad was.
The decree is reversed, with leave to add necessary parties and for such other proceedings as may be conformable to law. Ordered accordingly.