Boose v. Henderson
| Decision Date | 22 July 1941 |
| Parties | BOOSE et al. v. HENDERSON. |
| Court | Florida Supreme Court |
Rehearing Denied Sept. 12, 1941.
En Banc.
Appeal from Circuit Court, Dade County; Paul D. Barns Judge.
J. M McCaskill and Thomas B. Everhart, both of Miami, for appellants.
Murrell & Malone, of Miami, for appellee.
This case is here on appeal for the second time. For a decision on the first appeal, see Henderson v. Boose et ux., 142 Fla. 804, 196 So. 671. The decree assigned as error here settled the equities of the case. The facts involved in the case at bar are accurately set out in the former opinion of this Court.
The record here discloses considerable testimony as to the rental value of 105 acres of potato land located near Goulds, in Dade County, Florida. The cost of clearing the land was a controverted question and testimony was received on the annual yield of Irish Potatoes per acre in the Gould area. We have carefully read the testimony, examined briefs of counsel and heard able argument at the bar of this Court. The testimony was taken before a Master duly appointed, and the lower court entered a final decree affirming and approving the conclusions of the Master, with a few modifications.
In the consideration of the probative weight of the testimony, we are not in accord with all the conclusions of the Chancellor as expressed in the final decree, but there is no rule of law authorizing this Court to substitute its views or conclusions of the testimony for that of the Chancellor. The rule here is that the findings of the Chancellor on questions of fact will not be disturbed on appeal unless shown to be clearly erroneous. See Burgoyne v. Chadwick Mather Co., 129 Fla. 850, 176 So. 772.
It has not been made clearly to appear that the findings of the Chancellor are erroneous or that he abused his discretion or that there is not testimony in the record to sustain his conclusions.
The decree appealed from is hereby affirmed.
I concur in what has been said in the opinion by Mr. Justice CHAPMAN. There is one further point, however, insisted upon by the appellants which I think should be discussed and determined. Appellants contend that the Chancellor departed from the law of the case as established in our former opinion, Henderson v. Boose et ux., 142 Fla. 804, 196 So. 671, 683, because in that opinion we said: '* * * and we hold that as a condition precedent to obtaining a cancellation of the tax deed she should under the circumstances of this case be required by the trial court to first pay into the registry of the court a sum sufficient to reimburse these appellees for the improvements and betterments made by them to the land at their expense, to the extent that such improvements and betterments have added to the value of the land over what that value was at the time the tax deed issued.' And also said:
The Chancellor, upon substantial evidence, has determined 'the extent that such improvements and betterments had added to the value of the land over what that value was at the time the tax deed issued'; and in determining the rental value to be assessed against the defendants in the court below appears to have given them credit for that part of the new rental value which was created by them.
As I read the opinion, we did not mean to preclude the plaintiff from recovering rental values which have come to obtain by reason of other factors than the permanent improvements placed upon the land by the defendant.
The record now contains evidence that was not before us on the former appeal and that additional evidence was also, of course, before the Chancellor when he entered his decree from which this appeal is taken. The question of the determination of the amount of rentals which plaintiff was entitled to recover was not before the lower court when the decree dismissing the bill of complaint was entered, nor was it before this Court when we rendered our opinion and judgment, supra.
Therefore, such question was not determined on the former appeal. Hart et al. v. Stribling et ux., 25 Fla. 433, 435, 446 of text, 6 So. 455; Higbee v. Housing Authority of Jacksonville, 143 Fla. 560, 197 So. 479; Family Loan Co. v. Smetal Corp., 123 Fla. 900, 169 So. 48; Utley et al. v. City of St. Petersburg, 121 Fla. 268, 163 So. 523.
For these reasons we are unable to follow the contentions of appellant in this regard.
On Petition for Rehearing.
On petition for rehearing it is contended that the Chancellor applied erroneous principles of law in determining the value of rentals due by appellants to appellee and that we have departed from the provisions of the statute, Sec. 795, R.G.S., 1026, C.G.L., Sec. 3239, R.G.S., 5047, C.G.L. et seq., and from the rule established by our former decisions, especially in the case of Lovett v. Shore et al. 111 Fla. 592, 139 So. 194, 195, 149 So. 603, and in the opinion in former appeal in this case, Henderson v. Boose et ux., 142 Fla. 804, 196 So. 671.
We cannot agree with this contention. Our opinion is not in conflict with either the statute, supra, or with the opinions and...
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