62 Fla. 569 | Fla. | 1911
— This is a suit brought by Ada Russell and other named complainants against Edward Stiekney and two other named defendants for the partition of certain described lands, which suit resulted in a final decree being rendered in favor of the defendant, Edward Stick
■ A very succinct statement of the bill is that it alleges that on the 12th day of May, 1882, Edward Stickney by a certain deed, duly executed and acknowledged, conveyed an undivided one-half interest in and to certain described lands, of which partition is sought, to Silvanus Pinder, who, upon the receipt of such deed “entered into possession of the said real estate as a tenant in common with the said Edward Stickney, and continued in the possession as aforesaid, and while in said possession as aforesaid, the said Silvanus Pinder on- the 28th day of February, A. D. 1891, departed this life intestate, “leaving as his sole heirs at law his children, who are the complainants, and another daughter, Alice Sweat, who has subsequently also departed this life intestate, leaving as her sole heirs at law two children, who were infants and were made co-defendants with Edward Stickney.
After having unsuccessfully interposed a demurrer to the bill, Edward Stickney filed a sworn answer thereto, the oath to the answer not having been waived in the- bill, in which he admitted the execution of the deed as alleged but denied that Silvanus Pinder had ever entered into the possession of any part of the land, or was in possession thereof at the time of his death, or that he or his heirs had ever been in such possession. On the contrary, the defendant positively averred that he had “been in absolute control, and possession from the day he made his homestead entry up to the filing of this answer,” and that at no time did Silvanus Pinder during his life-time or his heirs at law, subsequent to his death, ever claim any portion of the proceeds arising from the crops which the defendant had raised upon the land by his own exertions, “but on the- contrary have at all-times acquiesced
At such final hearing, as we have previously said, a decree was rendered in favor of the defendant, Stickney, and the bill dismissed. In such decree the Chancellor sets out certain facts which he finds “established by the undisputed testimony.” After reciting the execution of the deed by Stickney to Pinder to an undivided one-half interest in the land, on the 12th day of May, 1882, the decree proceeds as follows:
“That the defendant has ever since remained in the exclusive possession of said tract of land, paying the taxes, cultivating it and enjoying the rents, issues and profits thereof without let or hindrance, and that no assertion of ownership or possession was made by Syl-vanus Pinder up to his death ón February 28th, 1891, nor any such assertion made by his heirs, the complainants, up to the filing of this bill on January 3rd, 1910, a period of nearly eighteen years after the execution of the deed to Pinder.
While in a court of law the possession of one tenant in common, in the absence of acts constituting an ouster, is the possession of his co-tenant, yet courts of equity favor diligence and are loath to enforce claims when the cláimants are shown to have been guilty of laches for a long period of time.
It is considered by the court that the claim of the com
In view of the conclusion which we have reached, it becomes unnecessary to discuss all the errors assigned. We are of the opinion that error was committed in overruling some of the objections interposed by the complainants to certain proffered testimony of the defendant Stickney, but such erroneous rulings resulted in no injury to the complainants. Discarding all of the testimony so erroneously admitted, we would still be impelled to the same conclusion.
We have called attention to the fact that the answer of the defendant Stickney was under oath, therefore, in so far as it was responsive to the allegations of the bill and direct, positive, and unequivocal in its terms, was evidence in his favor, in order to overcome which two witnesses were required, or one witness and corroborating circumstances. If the complainants had wished to avoid the probative force of a sworn answer they could have done so by expressly waiving the oath in their bill. Kahn v. Weinlander, 39 Fla. 210, 22 South. Rep. 653, and Pinney v. Pinney, 46 Fla. 559, 35 South. Rep. 95. The answer positively denies that either the complainants or their ancestor, through whom they claim, were ever in possession of the land or exercised.any acts of ownership over the same, which was clearly responsive to the bill. The only evidence adduced upon this point by the complainants was the production of the deed executed by such defendant to their ancestor, the execution of which the defendant had admitted in his answer. We held in McGourin v. Town of DeFuniak Springs, 51 Fla. 502, 41 South. Rep. 541, that “Where the bill alleges that the complain
It must be admitted that the points presented upon' this appeal are not free from difficulty. There is more or-less conflict in the authorities as to when the laches of a co-tenant will defeat a proceéding instituted by him for a partition of land! See 30 Cyc. 190, and authorities ‘ cited in notes. We would also refer especially to the exhaustive
In'the instant case the proofs-do not-show that there
Decree reversed.