45 Fla. 590 | Fla. | 1903
' STATEMENT.
On the 21st day of June, 1898, the appellee, a corporation, filed its bill in chancery in the Circuit Court of Du-val county against the appellant and Napoleon B. Broward as sheriff of the said county of Duval, alleging, in substance, therein as follows: That on the 9th day of August, 1897, appellee purchased' from William H. Caulk and wife and Julia Dearing a certain lot in the city of Jacksonville, therein described, receiving a deed from said grantors on said date, under which appellee was given possession of and went into possession of said lot on said date and then and thereafter continued to occupy
On the 22nd day of June, 1898, the appellant filed his answer to the bill, in which he positively denied all the material allegations in the bill and averred, among other things, that appellee and its chief officers knew prior to seeing the original deed from said grantors that appellant as agent £>f the owner sold said lot to one Edward F. Clark, for which appellant claimed compensation and which claim formed the basis of his judgment referred to in the bill of complaint; that appellee and its chief officers knew upon seeing said deed that appellant’s name and his business as a real estate agent were pirinted upon the back of said deed, that said deed was drawn by appellant and that as so drawn by appellant it was executed in the State of Kentucky, that the names of the witnesses were subscribed thereto in the State of Kentucky, that the re-writing of the name of appellee over the name of the said Edward F. Clark in said deed was done by some other than, and without the knowledge of, appellant and long after said deed had been executed’; that said deed was in itself notice to appellee of the said sale and con-' voyance to said Clark and of the compensation due in that behalf to appellant; (hat, though appellee aud its chief officers had an opportunity to tell appellant of its negotiations and acts in the matter, and it, was their duty to do so in the premises, yet the said officers so worded their conversation Avitli appellant then and there as to mislead opjellant. Paid*ansAver Avas SAvorn to by appellant, and e sa-'-p benefit -"-as churned therein as though a formal C "nurrer had been interposed to the bill.
Appellee filed a replication to the answer of appellant, a special examiner was appointed to take testimony in said cause, before whom considerable testimony was taken by the respective' parties and ‘duly reported to the court, and on the 12th day of May, 1900, a final decree in said cause was entered by the chancellor below, in which the temporary injunction was made perpetual and the costs were adjudged against appellant. From this decree appellant entered an appeal to this court, assigning some six errors. However, in view of the conclusion reached by us, it becomes unnecessary to consider said^ several errors in detail. Upon some points there was quite a conflict in the testimony, but, for reasons which will appear in the opinion it is unnecessary to set it forth. ¡Sufficient will appear in the opinion to indicate the view which we take of it, and as will be seen, upon the point which we take of it, and, as will be seen, upon the point diet in the testimony.
(after stating the facts.)
It is not alleged by appellee in its bill that either one of the deeds from Caulk, the owner of the lot in question, was tiled for record prior to the 13th day of August, 1897, the date appellee instituted his action of attachment against the said Caulk and caused the writ of attachment to be -levied on said lot. Indeed, it appears upon the face of said bill that the first deed which was delivered to appellee on the 9th day of August, 1897, was considered by it as being defective and only, part of the purchase price of said lot was paid and another deed was demanded of the grantors, appellee, however, retaining possession of said first or original deed. The second deed was executed and acknowledged in Kentucky on the 12th day of August, 1897, and hence could not have been in Jackson ville, Florida, on said date, and it was not filed for record until the 14th day of August, 1897, the day after appellant had caused a writ of attachment to be levied on said lot. It may be true that said deed was deposited in the post-office on the 12th day of August, 1897, though there is no evidence upon that point'and neither is there any evidence that appellee or its officers were informed of the delivery or depositing of said deed in the post-office either by wire or otherwise. However if said deed was delivered in the post-office on the 12th day of August it must have been at some post-office in the State of Kentucky. There.. is some conflict in the testimony as to when the balance of the purchase price of said lot was paid by appellee, $25.00 having been paid by it on the 9th day of August, 1897. but it would seem that the balance of said purchase price of $11,325.00 was paid by appellee on the 12th day of August, 1897. However, there is no allegation in the bill that appellant had any notice or knowledge of the
It is well settled by this court that in equity as well as at law a pleading is to be construed most strongly against the pleader," and also that it is incumbent upon a complainant to allege in his bill every fact clearly and definitely that is necessary to entitle him to relief. Herrin v. Brown, 45 Fla....., 33 South. Rep. 522; Johnson v. McKinnon, 45 Fla. .'..., 34 South Rep. 272. It is equally well settled that all the evidence offered in a case should correspond with the allegations, and be confined to the issues. Tate v. Pensacola, Gulf, Land & Development Co., 37 Fla. 439, 20 South. Rep. 542; Lyle v. Winn, 45 Fla. ...., 34 South. Rep. 158. It is also true that “no objection will be allowed to be taken in the appellate court to the admissibility or competency of any testimony, oral or documentary, found in the record- as evidence in a chan-, eery cause, unless the record affirmatively shows that the objection thereto was presented to the chancellor, and expressly ruled upon by him in the court below at or before the final hearing of the cause.” Skinner v. Campbell, 45 Fla. .. .'., 33 South. Rep. 526.
Section 1972 of Revised Statutes, relating to the recording of conveyances, has been construed by this court to place creditors and subsequent purchasers upon the same footing. Rogers v. Munnerlyn, 36 Fla. 591, 18 South. Rep. 669.
Section 1651 of Revised Statutes provides that a levy of the writ of attachment upon real estate shall bind said real estate as against subsequent purchasers or creditors only from the time of the record by the clerk of the Circuit Court in the lien book of a notice of the levy and a description of the property levied upon. The record in this
What effect could the notice to the tenant, he being the same tenant of the grantors and no visible or actual charge having taken place in the occupancy or possession of said land, have upon the rights of-appellant? In the case of Veasie v. Parker, 23 Maine, 170, it was held that “when the person in possession is other than the grantee, it is necessary that there should be a visible change which should indicate to others that there had been a sale, to have the effect of giving notice to a subsequent purchaser or attaching creditor. Therefore where one, who had been a tenant of the grantor before the giving of the unrecorded deed, attorned to the grantee at the time it was given, and remained in possession afterwards until after the attachment, such possession tan not furnish notice of the conveyance.”
As was said in Wahrenberger v. Waid, 8 Colo. App. 200, 45 Pac. Rep. 518, “the mere fact that tenants who were in possession of premises at the time a conveyance was executed thereafter pay rent to the grantee does not constitute such a change of possession as to impart notice of the vendee’s rights to put an attachment creditor upon inquiry.” The following cases will -also prove instructive upon this point: King v. Paulk, 85 Ala. 186. 4 South. Rep. 825; Troy v. Walter Bros. 87 Ala. 233, 6 South. Rep. 54; Griffin v. Hall, 111 Ala. 601, 20 South. Rep. 485; Mathews v. Demerritt, 22 Maine, 312; McMecham v. Grif
' From what has been said, it follows that the decree appealed from must be reversed, and it is so ordered, and the cause remanded for such further proceedings as may be in consonance with equity practice and not inconsistent with this opinion; the appellee to pay the costs of this appeal.