Robbins v. Gould, 18004.

• Decision Date: 02 May 1960
• Docket Number: No. 18004.,18004.
• Citation: 278 F.2d 116
• Parties: Florence N. ROBBINS and Theodore Robbins, Appellants, v. A. Harvey GOULD, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

278 F.2d 116 (1960)

Florence N. ROBBINS and Theodore Robbins, Appellants, v. A. Harvey GOULD, Appellee.

No. 18004.

United States Court of Appeals Fifth Circuit.

May 2, 1960.

J. Thomas Gurney, Parker Lee McDonald, Orlando, Fla., for appellant.

William D. Jones, Jr., Jacksonville, Fla., A. Max Brewer, Titusville, Fla., David W. Foerster, Jones & Foerster, Jacksonville, Fla., Crofton, Wilson & Brewer, Titusville, Fla., for appellee.

Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Hugh Nugent, Atty., Dept. of Justice, Washington, D. C., E. Coleman Madsen, U. S. Atty., Miami, Fla., Robert F. Nunez, III, Asst. U. S. Atty., Tampa, Fla., for respondent.

Before CAMERON, JONES and BROWN, Circuit Judges.

JONES, Circuit Judge.

This appeal is from a summary judgment awarding to A. Harvey Gould, the appellee, the full compensation for certain lands condemned by the United States as part of the Cape Canaveral program. At issue is the title to certain land, known as Tract 1462, DeSoto Beach Resubdivision, in Brevard County, Florida. By answers filed in the condemnation proceeding, the appellants, Florence N. Robbins and her son Theodore Robbins, on one side, and the appellee, A. Harvey Gould, on the other, each claimed the right, as owners of Tract 1462, to receive full compensation therefor. It was stipulated that the issue of compensation should be tried and the compensation paid into the registry of the court pending a resolution of the dispute as to whom the compensation was owing. Following this the appellants and the appellee entered into a stipulation for judgment with the United States fixing compensation for the tract at $31,200.

Thereupon Gould filed a motion for summary judgment. This motion at first was based solely on the answers of Gould and the appellants to the condemnation complaint. In his answer Gould had asserted record title. The appellants, on the other hand, merely asserted whatever right they may have had as the sole and only heirs of Florence N. Robbins' late husband, Rufus M. Robbins.¹

Both parties filed affidavits and depositions relating to the motion for summary judgment. From these affidavits and depositions the following pertinent history of Tract 1462 may be deduced: In 1917 Tract 1462, as part of a larger tract, was owned by Rufus M. Robbins. In that year the DeSoto Beach Improvement Company, herein referred to as the Company, was formed by Rufus M. Robbins and others. Rufus M. Robbins deeded a large tract of land to the Company in return for 198 of the 200 shares of stock of the Company. In 1922 an instrument was recorded in the Brevard County records which purported to be the minutes of a meeting of all the stockholders of the DeSoto Beach Improvement Company. These minutes recited that the Secretary would have power to execute deeds as fully as if they were signed by both the president and secretary. Rufus M. Robbins was not among those recited as being present at this meeting. Those present were stated to be the owners of "all of the shares of stock which have been issued and are outstanding." D. P. Sias, who in 1922 was secretary and treasurer of and owner of approximately one third of the shares of stock of the Company, testified on deposition that Rufus M. Robbins, prior to 1922, had sold all his interest in the Company.² In 1936 the Company was dissolved. In 1953 title to Tract 1462 was transferred to A. Harvey Gould by a deed signed by the surviving directors of DeSoto Beach Improvement Company as statutory trustees. It is on the basis of this deed that Gould claims title to Tract 1462 and the right to the stipulated compensation. The appellants' claim rests solely on the showing that Rufus M. Robbins in 1917 owned 198 out of 200 shares in the Company which in turn held title to Tract 1462, and on Florence N. Robbins' affidavit stating that

"My late husband, Rufus M. Robbins, owned and was possessed of substantially all of the outstanding shares of stock of the DeSoto Beach Improvement Company at the time said Company was organized, and to the best of my knowledge and belief, at no time prior to his death did he sell or transfer these shares of stock to any other person or persons."

The appellants do not, and in fact could not reasonably, contend that there is any issue of fact regarding the question of title to Tract 1462 raised by the affidavits and depositions in so far as they are summarized above. Record title is shown to be in Gould. Rufus M. Robbins is shown to have disposed of all his interest in the Company,³ and thus in the land. The affidavit of Florence N. Robbins that "to the best of my knowledge and belief" Rufus M. Robbins did not sell his interest in the Company is not evidence that in fact he did not sell his interest. At best this is nothing more than Florence N. Robbins' opinion given without any demonstrated basis of knowledge. Thus it is insufficient when tested by Rule 56(e) of the Federal Rules of Civil Procedure which requires that, "supporting and opposing affidavits * * * shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." 28 U.S.C.A.

In failing to assert that an issue of fact exists as to the possible interest of Rufus M. Robbins in the Company at his death in 1947, the appellants have tacitly admitted the non-existence of any such issue. As to this, the appellants say that the courts will apply the inter-pleader rule that a claimant must establish some right in himself, and not merely the absence of any right in another. 48 C.J.S. Interpleader § 47, p. 100. The correct rule, we think, was stated in an opinion by the late Judge Russell, before he came on this Court. The ruling was, "Considering the contest over the fund in a proceeding similar to the present one as in the nature of a contest for land, the opposing contestants are entitled to show outstanding title in a third person without connecting themselves therewith." United States v. 550.6 Acres of Land, D.C., 68 F.Supp. 151, 155. This Court affirmed, sub nom. Shropshire v. Hicks, 5 Cir., 1946, 157 F.2d 767, and adopted the district court's opinion. It is thus clearly the rule that in a condemnation proceeding one may attack the title of another claimant. Though Judge Russell wrote before the passage of Rule 71A made the Federal Rules of Civil Procedure applicable to condemnation proceedings, no reason appears why his statement has thereby lost its validity.

From the foregoing it appears to be indisputable that Gould has shown a right in himself to receive compensation while the appellants have not only shown no such right in themselves, but have also failed to rebut the positive evidence which negates any possibility that they might have such a right.

The appellants have sought to attack the title of Gould and the sole issue of fact asserted by them to be raised so as to bar granting the summary judgment is the issue of whether Gould procured the deed to Tract 1462 by fraud. Gould's deed was signed by the two surviving directors of the Company, Florence Babcock Rogers and Ralph Boswell. No irregularity is charged in the procuring of Florence Babcock Rogers' signature to the deed. The appellants maintain, however, that Gould's agent, one L. C. Crofton, procured the signature of Boswell through fraud. The deed was signed in 1953. Crofton sought to get Boswell's signature before he got that of Florence Babcock Rogers. Taking the evidence in a light most favorable to appellants, Crofton told Boswell only that the deed was a quitclaim deed designed to clear up title to part of the DeSoto Beach property. Whatever Crofton said or did not say, however, Boswell refused to sign the deed until it had been signed by Florence Babcock Rogers because, as he put it: "It the Company was practically a Babcock family affair except for my connection, which was simply a matter of being obliging."

The appellants, as evidence in support of their claim that the deed to appellee was procured by fraud, submitted an affidavit of Boswell which recited.

"I signed a quick claim deed for an Attorney by the name of Crofton. Mr. Crofton called on me at my home and told me he wanted me to sign a paper just to clear a cloud on a lot and asked me to sign the deed and gave me $25.00 for my signature. I did not realize that I signed the deed to the DeSoto Oceanfront. I did not have any interest in the DeSoto Beach Improvement Company at the time I signed this paper.

"Mr. Crofton did not tell me for whom he was acting."

Some light...