Williams v. Clyatt

53 Fla. 987 | Fla. | 1907

Whitfield, J.

(after stating the facts) : From the bill of complaint it appears that Henry Pinkney and Annett Williams each owned, by inheritance from their father an undivided one-half interest in the land in controversy; that Henry Pinkney conveyed his- interest to the complainant by warranty deed dated August 21, 1905, and' that prior to such conveyance Annett Williams on. July 21, 1905, procured and had issued to herself a tax deed to said land. It thus appears that Annett. Williams acquired a tax title to land in which «he had an undivided one-half interest as a coparcener, and that subsequent thereto the complainant acquired title by deed from the other coparcener of his undivided one-half interest. A coparcener cannot acquire a tax title to lands as against another coparcener because of their mutual obligations and interests. If land is sold as an entirety for nonpayment of taxes by all cotenants, and is bought by one of the cotenants, it amounts merely to the payment of the tax, and the purchasing co-tenant has no additional right in the land except to secure the payment of the amount paid by him for taxes for the other co-tenants. Freeman on Cotenancy and Partition (2nd ed.), section 158; 27 Am. & Eng. Ency. Law (2nd ed.) 956; Black on Tax Titles (2nd ed.), section 282. See also, Keil v. West, 21 Fla. 508; Petty v. Mays 19 Fla. 652.

By the purchase.of the undivided one-half interest of Henry Pinkney the complainant became a tenant in common with Annett Williams and he succeeded to all the rights of his grantor, including the rights to a partition and a redemption of his interest in the land from the claim of the other cotenant had for taxes therein paid by her in the purchase of the tax title.

In the case of the Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 South. Rep. 722, this court held that under the provisions of sections 1490-1497 Revised Statutes of 1892, sections 1939-1946 Gen. Stats, of 1906, “Whenever the case is properly one of partition, one whose dona fide object in the partition of the lands between common owners thereof, one .or more of whom are complainants and the others are defendants, then all controversies between them as to the legal title may and should be settled by the chancellor under our statute.” As this statute was adopted in 1844, before the first constitution of .the state became effective in 1845, it was in the above case held not to- be in conflict with the provision of the constitution as to jury trials.

This appears to be a dona fide proceeding for partition of land between tenants in common, and even if. the plea and the amended plea of the defendants had sufficiently set out an apparently valid adverse title claimed by them, so as to require an adjudication of it, the court in this proceeding could under the authority above quoted “proceed to- ascertain and adjudicate the rights and interests of the parties * * * by a hearing upon the pleadings and proofs,” and “to decree that partition be made if it shall appear that the parties, are entitled to the same.” The amended plea was properly overruled.

The error assigned on the refusal of the court to allow further time for the defendant to answer the bill of complaint cannot be sustained. The transcript shows that the bill of complaint was filed August. 23rd, 1905, that the defendants were served with subpoenas two days thereafter, that a demurrer to the bill filed October 2nd, 1905, was overruled October 2átlx, 1905, after the same had been confessed and the bill amended to meet the demurrer, that on November 6th, 1905, a plea was filed which was on March 3rd, 1906, overruled, and defendants allowed until the 20th day of April, 1906, to plead over or answer, that on April 24th, 1906, the defendants, by leave of court, filed an amended plea not materially different from the original plea, that on June 4th, 1906, the court overruled this amended plea and upon application for final decree the court proceeded to ascertain and adjudicate the rights of the parties, that on petition for rehearing mainly because further time.to plead had been denied the court made an order denying a rehearing and in such order states that “the facts being that on the final hearing both parties were before the court and argued the cause, and on the court’s announcing its judgment, the defendant then asked the court to be'allowed further time to plead over, but did not state that there - was any meritorious defense, or tender any plea or answer, nor make known the existence of any.” Thus it appears from the record that after the original plea was held to be had and 20 days time given “to plead over or answer” the defendants filed substantially the same plea which was held insufficient, and final decree was asked for when “both parties were before the court and argued the cause, and on the court’s announcing its judgment, the defendant then asked the court to be allowed further time to plead over, but did not state that there was any meritorious defense, or tender any plea, or answer, nor make known the existence of ány.” A trial court should not be held in error for refusing to allow defendant time to answer a bill of complaint after two successive pleas have been held insufficient, when the defendant is present and argues the case on final hearing and does not ask for further time to answer until the judgment of the court against him is announced, and even then makes no offer of a ~bona fide meritorious defense. Such a practice 'lacks the merit of sincerity and has the appearance of trifling with the court’s procedure. •

When a defendant is present and without objection argues the case at the final hearing he cannot successfully assign as error a failure to set the cause down for final hearing and a failure to give notice of it.

The statute provides that “upon application for entry of a final decree, made after a decree pro confesso■, or after the litigation of the cause, the court shall proceed to ascertain and adjudicate the rights and interests of the, parties.” In this case a plea and also an amended plea were interposed and overruled. This was a litigation of the cause. In the presence of both parties the final hearing was had .and judgment announced. Under these circumstances the mere failure to enter a decree pro confesso cannot be held to be reversible error. The defendant was present and argued the case at the final hearing upon the overruling of the amended plea. He is held to have known the state of the pleadings and that he had presented no defense that was entertained by the court. The entry of a decree pro confesso shows the defendant has, not presented a defense to the suit and permits the plaintiff to proceed ex parte. The defendant in this case was present and took no part in the final hearing. The proceeding then was not ex parte. As the defendant took part in tke final hearing without asking further time to answer until after the court announced its judgment, he cannot complain that no decree pro confesso was formally entered in the cause.

This disposes of the merits of all the assignments of error properly before us on the appeal as entered.

The decree is affirmed.

Shackleford, O. J., and Cockrell, J., concur; Taylor, Hocker and Parkhill, JJ., concur in the opinion.