40 Fla. 362 | Fla. | 1898
Both complainants and defendants entered appeals in this case, and separate transcripts of the record have been filed on the appeals. No objection is urged to any of the appellate proceedings in this court, nor is any objection made to the procedure in the Circuit Court, except a suggestion in brief of counsel for Hancock and others that the record fails to show a disposition of the plea filed by George T. Ross and set down for argument. Ross was made a party to the bill but no reliefwas, specially prayed against him, nor does the decree appealed from expressly adjudicate anything as to his rights. After the filing of a plea by him, setting up an interest as mortgagee in the undivided interest of the defendant John M. Taylor, it was set down for argument, and there is no showing that any hearing was had thereon. The record does show that the parties went into proof on the matter of the plea and that the case was brought on for final hearing without any objection as to the condition of the pleadings. Ross, though joining in the appeal, has filed no assignment of errors here, nor is there any error assigned by any appellant on the condition of the record as to said plea.
Where the parties, after a plea is filed and set down, fail to bring it on for hearing, and proceed to take testimony as to the matters of the plea, and further bring the case on for hearing, this court, in accord
Both of the appeals in the present case are presented together, and in view of the rule that an appeal in chancery opens up the entire case for appellees as well as appellants, the case will be disposed of on its merits, so far as disclosed by the record, without reference to the strict requirements as to assigning and considering errors in the appellate court. The bill of complaint has a double object: It seeks the cancellation of certain quit-claim deeds from complainants to defendant Hancock, and a similar deed from the latter to the other original defendants, and also certain tax titles acquired by all óf said defendants. In reference to the quitclaim deeds, the testimony discloses three separate transactions in the purchase of the land by Hancock from complainants. On and prior to June, 1890, the land in question was jointly owned by W. P. Stackpole and John L. Coniior, and about the 2nd day of that month Hancock purchased the interest of Stackpole in the land. Connor died, and about the 26th of September, 1890, three of his heirs, James, Eugene and Rosanna Connor, deeded their interest in the land to Hancock. The purchase by Hancock from the parties named was made by him in person in the State of Connecticut, where they resided. In Deceriiber. of the same year Hancock purchased through one J. T. Lynch the interest of W. J. Connor, the only other heir at law of John L. Connor, deceased. Stackpole and John L. Connor, deceased, purchased the land in 1882, and for a short timé resided upon it, but soon left the State and never again returned. Phosphate had not beén discovered in Florida whén théy were here, and no interest in Florida binds hád arisen oil account of phosphate. This discov
Counsel for Stackpole have assumed that the combination of the defendants and agency of Hancock to purchase the land is established by the pleadings, and required no proof. In this they are mistaken. Hancock filed a separate answer and therein admitted the allegation of agency, but his answer cannot be used against the other defendants in the absence of proof that he occupied such a relation to them as to bind them by his representations. The defendants, other than Hancock, deny positively that they authorized Hancock to make any of the fraudulent representations alleged, and upon information they deny that any such repre
The testimony in this case is clear and positive that defendants Hale, Taylor and Keathley had no connection whatever with Hancock in the purchase of the land when Stackpole sold his interest, and on the proof, under the state of the pleadings, the chancellor should not have decreed against said defendants as to the interest acquired by them in the half interest of W. P. Stackpole. The complainants completely failed to establish the case made against said defendants as to said interest, and the latter were not compelled to specially set up the defense,of a bona fide purchaser without notice, but
As to the purchase from James, Eugene and Rosanna Connor, the case is different. When this purchase was made, Hancock is shown to- have acted for and represented the other defendants. It is true that there is no testimony tending to show that defendants Hale, Taylor and Keathley authorized any false representations, or knowingly ratified any, but it is true that Hancock was then acting for them, and they must be bound by his acts and doings. Cofer v. Moore, 87 Ala. 705, 6 South. Rep. 306. The decided weight of the testimony shows that Hancock represented to James, Eugene and Rosanna Connor at the time he purchased from them that the land did not contain phosphate. All three of them testify that in response to a direct question as to whether there was any phosphate on the land, Hancock stated there was none. It also .appears from the testimony of two other witnesses, not connected with the litigation, that Hancock stated to them in Willimantic, Connecticut, where the purchase was made, that no phosphate existed on the land. One of the witnesses had advised the Connors not to sell, and Hancock obtained an interview with him for the purpose of convincing him that his advice was wrong, and to get him to advise the Connors differently. It is true that the witness mentioned had been informed that Hancock held a tax title to the land, and on 'this information he advised the Connors not to sell. Hancock then held two tax titles to the land, andit appears that he impressed the witness with the idea that the land might be lost to the owners on account of the tax titles. But the witness states that before consenting to advise the Connors to sell under the showing of tax titles he asked Hancock about the phosphate on the land, and was as
It may be that the decree against the Connors was influenced by the view that they were induced to sell solely on account of tax titles which Hancock held. Counsel take this position here. It does appear that Plancock exhibited two tax titles at the time of purchase and brought their existence prominently to view in all the negotiations, but in connection with the tax titles and as an additional inducement to bring about the sale the representation was made that the land had no phosphate on it. It was made to owners who
There is some contention that complainants were barred by laches in not earlier instituting proceedings to cancel theisales. No such defens.e was made in the answers, but conceding that it may be insisted on without specially pleading it, the record here affords no sufficient support for the contention.
The amended bill seeks the cancellation of two tax deeds which defendants sought to interpose as evidence of a superior title in themselves. One of the deeds is based upon an assessment of the land in question for the year 1888, and this is tfie only one that demands any consideration, as the other does not embrace the land, and can, therefore, have no bearing on the case. The land in question is the W 1-2 of S. W. 1-4 of section 12, township 22 S., range 20 east, and the deed put in evidence, based upon the assessment of 1889, describes the larid as the W. 1-2 of N. W. 1-4 of section 12, township 22, range 20 east, which is an en
Complainants put in evidence page 48 of the assessment roll of Hernando county for the year 1888, showing an assessment of'the. land for that year as the property of W. L. Connor. Proof was then made by the clerk of the Circuit Court that the tax returns, after the completion of the assessment rolls, were deposited in his office, and he was the custodian of them, and that upon an examination of the returns for the year 1888 he found one for the land in controversy. The return was produced in evidence and showed a proper description of the land listed to J. L. Connor. The witness further stated that from his knowledge of his handwriting he would say the return was m the handwriting of the tax assessor for the year 1888. It was shown that W. P. Stackpole and John L. Connor were the owners of the land during the year 1888, and no one was in the actual occupancy of it. The assessment in question was made under the act of 1887, Chapter 3681, the twenty-second section of which reads as follows: “The assessor shall ascertain by personal inspection, when not already sufficiently acquainted therewith, the value of the lands and assess them at their full cash value, and set down in the assessment rolls following and opposite the description of the lands, the name of the owner, or person in whose name the return is made; and when land has not been returned, the assessor shall enter the word "unknown’ in the column of the assessment roll ■ provided for the name of owners or person making return. A failure to give the name of the owner or person making the return; shall not invalidate the assessment. When the owner or person making the return of any real estate- is dissatisfied with the valuation fixed thereon by the assessor, and shall make complaint
It appears that the decree made no provision for a refunding of the purchase money and interest by the succeeding complainant, W. P. Stackpole. The cancellation should be conditioned upon the refunding of the proper amount of purchase money and interest by those of the complainants in whose favor the decree is made.
The decree, so far as W. J. Connor is concerned, is affirmed; and in all other respects it is reversed with directions to enter a decree in accordance with the views expressed.