Byrne Realty Co. v. South Florida Farms Co.

• Decision Date: 06 June 1921
• Citation: 89 So. 318,81 Fla. 864
• Parties: BYRNE REALTY CO. et al. v. SOUTH FLORIDA FARMS CO.
• Court: Florida Supreme Court

89 So. 318

81 Fla. 864

BYRNE REALTY CO. et al. v. SOUTH FLORIDA FARMS CO.

Florida Supreme Court

June 6, 1921

Rehearing Denied Aug. 3, 1921.

Bill by the South Florida Farms Company against the Byrne Realty Company, William T. Abbott, and others, with cross-bill by William T. Abbott. From an order sustaining demurrers to the cross-bill, defendants appeal.

Affirmed.

Love Circuit Judge, and Browne, C.J., dissenting.

Syllabus by the Court

SYLLABUS

Essentials of cross-bill stated. A cross-bill must be germane to and auxiliary to the original bill and pray for affirmative relief concerning matters in litigation under the original bill.

Use of cross-bills in proper cases not forbidden by statute. Chapter 6907, Acts of 1915, does not forbid the use of cross-bills in proper cases, though the statute expressly provides for obtaining affirmative relief upon answers in classes of cases stated in the act.

Cross-bill seeking affirmative relief may add new parties. In a cross-bill seeking affirmative relief new parties may be added, whose presence is essential to a complete determination of the matter.

Cross-bill must be as complete and perfect as original bill. A cross-bill must be as complete and perfect as an original bill.

When cross-bill demurrable stated. A cross-bill is demurrable where it does not contain the allegations necessary to show that the cross-complainant is entitled to relief, where it is uncertain and indefinite in its allegations as to those matters on which counter relief is sought, or where, seeking relief which is of an equitable nature, it does not contain all the proper allegations which confer an equitable title to such relief.

Cross-bill uncertain as to matters on which counter-relief sought defective. A cross-bill is defective, when it is uncertain and indefinite as to those matters on which counter relief is sought.

All facts necessary to relief must be alleged in cross-bill. It is incumbent upon a complainant to allege in his cross-bill clearly and definitely, every fact that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing.

What admitted by demurrer stated. A demurrer containing appropriate specific grounds does not admit asserted conclusions that are not sustained by proper conclusions or that are contrary to law. Now does it admit allegations that are contradicted by records of which the court may take judicial notice.

Complainant in cross-bill must allege all essential ultimate facts. It is incumbent upon the complainant in a cross-bill to allege all the ultimate facts that are essential to show the equity upon which he relies for the relief prayed.

Cross-bill failing to duly allege equity, demurrable. If an equity is not duly alleged in a cross-bill it is demurrable. If from the facts alleged an equity may be implied, but the allegations show that a once potential equity has been extinguished by laches or otherwise, then there is no existing equity, and the bill is subject to appropriate demurrer.

Lawful subject-matter and competent parties requisite to express trust. A lawful subject-matter and competent parties having appropriate authority in the premises are requisite to the creation of an express trust.

What necessary to create express trust, stated. In order to create an express trust, the subject, object, and terms of the trust must be definitely stated by competent authority; and in order to be enforced by judicial proceedings the trust must be evidence as may be required by law.

Where trust must be in writing, its object and terms must be definitely expressed. Where the declaration or creation of an express trust in lands is by statute required to 'be manifested and proved by some writing signed by the party authorized by law to declare or create such trust,' the subject, object, and terms of the trust must be definitely expressed in a writing executed by an authorized party as the statute provides, or the trust cannot be proved for judicial enforcement.

Title to swamp and overflowed lands does not vest in state until patent issued. The perfect title of the state to swamp and overflowed lands under the act of Congress approved September 28, 1850, does not vest in the state until the patent covering the lands is issued.

When claim for expenses in selecting lands to be patented gives right to select particular lands stated. While the expenses of selecting the lands to be patented to the state may be a prior claim against the lands of the fund, such claim gives no right to select or sell particular lands, unless the selection or sale is duly recognized or acquiesced in by the trustees within their statutory powers, or is adjudged by appropriate judicial proceedings.

Authority for issuance of certificate by Commissioner of Agriculture held insufficiently alleged. The allegations here considered do not show that the trustees of the Internal Improvement Fund authorized the issuance of a certificate made by the Commissioner of Agriculture that lands therein described would by the trustees be conveyed to a named person or to his order when the patents to the lands may be received by the state. Nor does the certificate create a trust in the lands under the showing made.

Allegations held not to show completed equitable title in vendees. Where it is alleged that pursuant to a contract to sell all the lands the vendor may receive from a certain source, the vendor indorsed in blank and delivered to the vendees a certificate made by another person in which certain lands were described, and the vendor received an 'initial payment' 'as provided in the contract,' and also another payment 'on said contract' 'under and in pursuance of the provision of a contract that certificates should be delivered in proportion as payments are made thereon,' and the price to be paid per acre by the contract and other terms of the contract are not given, such allegations as they appear with others in this case do not show a completed equitable title in the vendees to the particular lands.

Demurrer to bill to determine title to land properly sustained, where rights pleaded have been lost by laches. Where particular allegations show that a possible potential equity once existed in lands, but other allegations of the pleading show the loss of such right by laches, if any existed, a demurrer to the bill of complaint is properly sustained.

Equity in lands under contract held extinguished by laches. Where a certificate describing lands is in 1892 indorsed in blank and delivered to alleged vendees upon the payment of money under a contract of sale, but it does not appear that the entire contract price was paid, and deeds were not applied for when patents were issued in 1903 as contemplated by the certificate in which the lands were described, and no assertion of rights by virtue of the certificate and the payments made thereon pursuant to the previous contract are made till 1917, 13 years after the death of the alleged vendor and after the lands were held by the heirs of the vendor for years under a recorded title and then conveyed by them to other parties, the equity, if any was acquired by the vendees, in the particular lands, is extinguished by laches.

Appeal from Circuit Court, De Soto County; John S. Edwards, Judge.

COUNSEL

N. B K. Pettingill, of Tampa, and Arthur F. Odlin, of San Juan, Porto Rico, for appellants.

Alex. St. Clair-Abrams, of Jacksonville, Gramling & Clarkson, of Miami, John W. Henderson, of Tallahassee, and S.D. Clarke, of Monticello, for appellee.

On May 16, 1917, the South Florida Farms Company, a corporation, filed its bill of complaint against Byrne Realty Company, a corporation, the Barnett National Bank, a corporation (successor to the National Bank of Jacksonville), and William T. Abbott, alleging in substance that----

'On or about October 20, 1914, complainant purchased described lands from named persons, who obtained title to the lands from the Trustees of the Internal Improvement Fund of the State of Florida as the heirs of John A. Henderson; that complainant 'did then and there go into and now remains in actual possession of said lands, paying taxes thereon and exercising acts of ownership thereof'; that complainant further 'says that it is alleged and claimed that in the year 1890 one James M. Kreamer and J. J. Dunne entered into a contract of purchase with John A. Henderson, now deceased (father of your orator's grantors), for the purchase of the lands described above; your orator is informed and believes and so alleges that if any such contract was entered into the said Kreamer and Dunne utterly failed and neglected to comply with the contract of purchase or to pay the amount agreed upon, and by reason of their default in such payments have forfeited all rights to a performance of the contract and ceased utterly to have any right, title, or interest in said lands; that at the time of the contract of purchase the said John A. Henderson had no right, title, or interest in said property, but only an equitable claim for lands on account of services rendered by him to the Trustees of the Internal Improvement Fund of the State of Florida; that the lands described above had not been patented to the state of Florida by the government of the United States; that, notwithstanding this, L. B. Wombwell, Commissioner of Agriculture of the State of Florida, as your orator is informed, executed a certificate (covering the lands), a copy of which is hereto annexed and marked Exhibit A, which your orator prays may be taken as part of this bill; that the said Wombwell was without authority...