Tibbetts v. Olson

• Decision Date: 03 May 1926
• Citation: 108 So. 679,91 Fla. 824
• Parties: TIBBETTS v. OLSON et al.
• Court: Florida Supreme Court

108 So. 679

91 Fla. 824

TIBBETTS v. OLSON et al.

Florida Supreme Court

May 3, 1926

En Banc.

Suit by Johnson C. Tibbetts against Atwell Olson and others to quiet title. From an order refusing to grant an application for an order of publication, complainant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

If complaint to procure adjudication as to clouds on title alleges sufficient facts to present justiciable matter, and shows complainant is entitled to order of publication constructive service of process by publication may be had (Acts 1925, c. 10221, and chapter 10102, as amended by Senate Bill No. 86, c. 11364, approved November 30, 1925). If a bill of complaint, filed for the purpose of procuring an adjudication as to clouds upon the title, alleges sufficient facts to present a justiciable matter to a court of competent jurisdiction, and therein it is shown that the complainant is entitled to an order of publication or notice to appear under the laws of Florida, the provisions of section 1 of chapter 10102, Acts of 1925, as amended by Senate Bill No. 86, Laws of Florida, approved November 30, 1925, apply, and constructive service of process in such cases may be had upon or against 'any defendant, party or persons, natural or artificial, whether such defendant, party or person be adult or infant, known or unknown, dead or alive, absent, concealed or nonresident and whether such defendant, party or person be stated to be a resident of this state or of some other state or of some territory or possession of the United States or of the District of Columbia or of some foreign state, kingdom or country, and whether the residence of any such defendant party or person be stated as known or unknown, such order of publication or notice to appear shall require such defendant party or person to appear upon a day (whether a rule day or otherwise) to be named in the order of publication not less then twenty-eight days nor more than sixty days from the date of the making of the order.'

Complainant in suit to quiet title or clear cloud therefrom is entitled to order of publication or notice to appear on filing complaint sworn to by himself, his agent, or attorney alleging facts entitling him to relief, and when complaint meets statutory requirements (House Bill No. 296, c. 11383, § 3, approved Nov. 30, 1925). A complainant in a suit in chancery for the quieting of, or clearing a cloud from title, is entitled to an order of publication or notice to appear when he has filed a bill of complaint sworn to by himself, his agent or attorney, alleging such facts as will entitle him to relief in a court of chancery, and, when the bill of complaint meets the requirements of section 3 of House Bill No. 296, chapter 11383. Laws of Florida, approved November 30, 1925.

All known or unknown defendants should be named and referred to in notice to appear to defend; publication of notice to appear in suit to quiet title does not give court jurisdiction of persons who by exercise of due diligence could be personally served by subpoena or summons within state; notice by publication to appear in suit to quiet title, made, in accordance statutes, will constitute constructive service on all defendants except known defendants residing within state, and whose place of residence therein is known or by exercise of reasonable diligence could have been ascertained (Acts 1925, c. 10102 as amended by Senate Bill No. 86, c. 11364, approved Nov. 30, 1925; House Bill No. 296, c. 11383, § 3). All known and unknown defendants should be named or referred to in the notice, but it appears to have been the legislative intent not to eliminate the necessity of personal service of subpoena upon known defendants residing within the state of Florida. Therefore, while the notice is required to be addressed to all persons having or claiming an interest in the property, the publication thereof will not be deemed to give the court jurisdiction of those persons who could by the exercise of due diligence be personally served by subpoena or summons within the state. Such notice, however, when made in accordance with the provisions of section 1 of chapter 10102, as amended by Senate Bill No. 86, c. 11364, or in accordance with section 3 of House Bill No. 296, chapter 11383, Laws of Florida, approved November 30, 1925, will be deemed and held to constitute constructive service on all defendants except those known defendants residing within the state of Florida, and whose place of residence in this state is known, or by the exercise of reasonable diligence could be ascertained.

To remove clouds upon title and to quiet title to real estate is a proper subject for equity jurisdiction.

Statutes may authorize the service of process by publication, but to effect such service the statutes must be strictly complied with.

The allegation that the complainant 'is in the actual possession of the real estate' is sufficient as an allegation of possession.

Complaint to quiet title, alleging fee-simple title in complainant, followed by delineation of claim of title from United States government to himself, and alleging continuous, open, and notorious possession for more than seven years, sufficiently alleges title. The complainant alleges in his bill feesimple title in himself, and follows this with a delineation of his claim of title from the United States government to himself, and alleges continuous, open, and notorious possession under his conveyance for a period of more than seven years. This constitutes sufficient allegations of title.

Rules of pleading applicable to suits to quiet title and to remove cloud therefrom must be observed; bill of complaint to quiet title must allege facts showing complainant to be in position contemplated by statutes or entitling him to equitable relief; in bill to quiet title, cloud on title must be specifically alleged if one is claimed to exist, or if mere claim of interest is alleged, facts constituting basis thereof must be alleged and validity or invalidity of either must be shown (Rev. Gen. St. § 3213, as amended by Acts 1925, c. 10223; House Bill No. 296, c. 11383, approved Nov. 30, 1925). The nature of the remedy has not been changed by the enactment of the statutes herein referred to, and the rules of pleading applicable to such actions must be observed. The bill of complaint must allege those facts which show that the complainant is in that position contemplated by the statutes or entitling him to equitable relief; and the cloud upon the title must be specifically alleged, if it is claimed a cloud exists, or, if a mere claim of interest is complained of, then the facts constituting the basis of such claim must be alleged, and validity or invalidity of either must be shown; otherwise there can be no justiciable matter presented to the court.

Those asserting unconstitutionality of statute have burden to show beyond reasonable doubt that it inevitably conflicts with some designated provision of Constitution. Those who assert the unconstitutionality of a statute have the burden of showing beyond all reasonable doubt the statutes inevitably conflict with some designated provision of the Constitution.

Allegations of complaint to quiet title must show basis or character of claims of interest, or of title, by persons against whom service by publication is sought (House Bill No. 296, c. 11383, approved Nov. 30, 1925). The allegations of the bill of complaint must show the basis or character of the claims of interest, or of title, by such persons against whom process is sought.

Allegations of complaint to quiet title need not be sworn to by complainant; bill of complaint to quiet title asking service by publication may be sworn to either by complainant, his agent, or his attorney; complaint to quiet title asking service by publication should be sworn to by one who can honestly and truthfully subscribe to oath (Acts 1925, cc. 10102, 10221). The statute does not require the allegations of the bill to be sworn to by the complainant, and, when all statutes of this state in regard to constructive service by publication are considered together, it is clear that a bill of complaint in such cases may be sworn to by either the complainant, his agent or his attorney. The oath is not a mere formality, however, and should only be made by one who can honestly and truthfully subscribe to the same.

Where service by publication is had on bill properly sworn to and alleging sufficient facts to give jurisdiction of parties and subject-matter, decree pro confesso may be entered against defendants in default on proper return day named in writ or on any date during continuance on default thereafter, or may be entered by clerk of court on any rule day after the return day during continuance of default. Where constructive service is had by publication upon a bill properly sworn to and alleging sufficient facts to give the court jurisdiction of the parties and of the subject-matter, a decree pro confesso may be entered by the court against defendants in default on a proper return day named in the writ or on any date during the continuance of default thereafter; or may be entered by the clerk of the court on any rule day after the return day during the continuance of such default.

If bill to quiet title had stated facts constituting basis of alleged claims, allegations as to identity of, and residence of claimants being unknown would have been sufficient as to unknown defendants. If the bill had stated facts which constitute a basis of the alleged adverse claims of interest or of title, then the allegations in the bill as to the identity of, and the residence of, such claimants being unknown, 'and your orator would further show unto your honor that the names of...