44 Fla. 719 | Fla. | 1902
This cause was referred by the court to its commissioners for investigation, and they report that the decree appealed from ought to be reversed.
From the abstracts of record it appears that on February 20, 1.897, appellee filed in the Circuit Court of DeSoto county an amended bill of complaint in which he alleged that the property involved in said suit, consisting of certain real estate therein described, was sold under an execution in. favor of the Emerson Fisher Company against Steven J. Carlton for the sum of $49.88 principal, $1.08 interest, and $28.03 costs and attorneys’ fees, making a total of $78.99, which was issued by the Circuit Court of DeSoto county upon a judgment obtained in the County Court of said county, upon the filing of a transcript of said judgment in the office of the clerk of said Circuit Court; that the execution and the sale made there-, under were illegal and void for the reason that (be County Court which had jurisdiction of the cause of the Emerson Fisher Company against said Steven J. Carlton, ánd which rendered the judgment against him, was a court of civil jurisdiction up to $500, under the constitution of Florida, with full power to issue and carry into effect all of its own judgments, and that the Circuit Court had no jurisdictionto issue an execution on a judgment rendered in said County Court, and that the proceedings, so far as the sale was concerned, were invalid and void. The bill prayed that the scriff’s sale be set aside; that the deed made by him be delivered up and cancelled, and that the execution be quashed and held for naught.
On April 28, 1897, the appellant Samuel J.. Simmons filed his answer to the amended bill in which he admitted
' We have stated in full the pleadings as given in the abstracts of record which have not been excepted to. It will be perceived that the bill does not state the date of the judgment and execution, or. of the sale sought to be ■annulled; nor does’ it allege that appellant purchased at •such sale, nor that he claims any interest in the property •described therein. A more serious defect will be noticed •also in this, that the bill fails to allege that the appellee was the owner and in possession of the property from
But there is another defect, and that is that the character of the alleged cloud as disclosed by the bill is such, that eqnity will not interfere to remove it, but leave the party to his remedy at law. In Sloan v. Sloan, 25 Fla. 53, 5 South. Rep. 603, the rule is stated as follows: “Where the instrument or proceeding complained of as constituting a cloud upon title is void upon its face, or Avliere the' instrument is not void upon its face, but the party claiming under it must, in order to recover upon it, necessarily offer evidence that will inevitably show its invalidity and destroy its effect, such instrument is not a cloud upon title within the legal definition of the term.” Barnes v. Mayo, 19 Fla. 542; Reyes v. Middleton, 36 Fla. 99, 17 South. Rep. 937. In the case of Clem v. Meserole, 44 Fla. 234, 32 South. Rep. 815, it is held that in actions involving title under execution sale the holder of‘such title can not introduce in evidence his deed or the execution without also introducing the record of the judgment if insisted upon by the adverse party This being so, it necessarily follows that the appellant could not maintain in a court his title to the property purchased at the sheriff’s sale without introducing evidence, to-wit: the record of the judgment, upon production of which it would inevitably appear that the judgment emanated from the County Court, and, therefore, if it be true as contended by appellee that a Circuit Court execution can not be issued upon
- The decree of the Circuit Court is reversed and the cause remanded with directions to dismiss the bill, but without prejudice to the right of appellee to institute any other’ proceedings, legal or equitable, as he may he advised.