Eaton v. Hopkins

• Decision Date: 18 May 1916
• Parties: EATON et al. v. HOPKINS et al.
• Court: Florida Supreme Court

71 So. 922

71 Fla. 615

EATON et al. v. HOPKINS et al.

Florida Supreme Court

May 18, 1916

Error to Circuit Court, Madison County; M. F. Horne, Judge.

Action by George W. Hopkins and another against R. L. Eaton and another, as administrators of the estate of William M Girardeau, deceased. Judgment for plaintiffs, and defendants bring error. Reversed.

Syllabus by the Court

SYLLABUS

Where a single assignment of error attacks a ruling of the court upon a demurrer which was interposed to two or more pleas, such an assignment will be tested by the sufficiency or insufficiency as the case might be, of any one of the pleas.

An action for a breach of the covenant of warranty in a deed of conveyance to two or more persons in common may be brought by any one or more of the grantees named in the deed.

A charge technically erroneous upon the burden of proof becomes harmless if the undisputed evidence is sufficient to establish the point upon which the court erroneously charged concerning the burden of proof.

In an action by one or more grantees in common for a breach of the covenant of warranty, the plaintiffs may recover only so far as their own interests extend.

In an action for a breach of the covenant of warranty, where the vendor conveys the property a second time under circumstances that would charge him with knowledge of the fact that he had previously conveyed the property, and the latter purchaser takes the paramount title by being the first to comply with the recording laws, the measure of damages to be applied is compensation for the actual injury sustained, or 'damages for the loss of the bargain,' including costs and expenses incident to a defense of the title.

COUNSEL T. L. Clarke, of Monticello, for plaintiffs in error.

Wm. T Hendry, of Perry, for defendants in error.

OPINION

ELLIS J.

On the 25th of October, 1902, William M. Girardeau and his wife conveyed to George W. Hopkins, Mattie C. Collins, and Charles Marthinson 120 acres of land in Taylor county. The consideration expressed was $600. The interests conveyed were an undivided one-fourth to Charles Marthinson, the same quantity to George W. Hopkins, and an undivided one-half interest to Mattie C. Collins. The deed contains a covenant of general warranty.

On September 28, 1904, William Girardeau and his wife conveyed the same land to William O'Brien, and, as the grantees in the first deed of conveyance had not caused their deed to be recorded, the circuit court in August, 1908, in a suit brought by George Hopkins and Mattie Collins against William O'Brien to cancel the latter deed as a cloud upon the title, decreed that O'Brien was a bona fide purchaser of the land for a valuable consideration and without notice of the title of Hopkins and Mattie Collins, and dismissed the bill. William Girardeau was given due notice of the suit and made a party defendant.

On September 4, 1909, William Girardeau died testate, naming two executors of his will, one of whom died, and the other, Mary Girardeau, widow of deceased, was removed, and in October 1910, the two defendants, R. L. Eaton and G. C. McCall, were granted letters of administration upon William Girardeau's estate de bonis non cum testamento annexo.

Before the death of William Girardeau, and prior to the institution against O'Brien of the suit to remove the cloud upon plaintiffs' title, they and Charles Marthinson brought an action at law against William Girardeau in 1906 to recover the purchase money paid by William O'Brien to William Girardeau 'based upon Girardeau's warranty deed' for money had and received by Girardeau for the use of the plaintiffs. That suit was dismissed.

R. L. Eaton is the son-in-law of Mrs. Mary Girardeau, widow of the deceased, and at one time one of the executors of her deceased husband's will. She was removed from that position largely through the activity of Mr. Eaton, who, with Mr. McCall, as stated, was appointed administrator. During Mrs. Girardeau's executorship the plaintiffs, through their attorney, Mr. S.D. Clarke, on September 8, 1910, wrote Mr. Eaton giving full information as to the history and nature of the plaintiffs' claim against the estate of William Girardeau, and requested him to 'take up the matter,' as Mr. Clarke supposed Mrs. Girardeau would be guided largely by Mr. Eaton's views. In reply to this letter Mr. Clarke to take upon the margin directing Mr. Clarke to take the matter up with Mrs. Girardeau, and saying that, if she said anything to him about it, he would advise her to pay it. After Mr. Eaton's appointment as administrator, Mr. Clarke again wrote him, referring to the letter of September 8, 1910, and requesting Mr. Eaton to close the matter at once. The last letter followed the first in about eight months. Mr. William T. Hendry, attorney for the plaintiff, early in the year 1914 applied to Mr. Eaton for a settlement, and tried to get him to give Mr. Hendry an 'acknowledgment of the account for $1,000,' but Eaton refused to do so, and offered to pay $600 in settlement.

On October 8, 1909, Mrs. Mary Girardeau and T. M. Puleston, the then executrix and executor of the will of William M. Girardeau, caused to be published in a newspaper published in Monticello the notice to creditors of the estate required by statute. The notice was published for eight weeks, and proof of the publication made in October, 1914.

The plaintiffs commenced this action of covenant upon the warranty contained in the Girardeau deed of 1902 in the month of May, 1914, in the circuit court for Madison county. The defendants, R. L. Eaton and G. C. McCall, as administrators, pleaded: First that the covenants were made to plaintiffs and Charles Marthinson jointly, that neither he nor his personal representatives were made parties plaintiff, 'and the plaintiffs are not entitled to claim or recover for any moneys paid by said Charles Marthinson for the purchase of the lands mentioned in plaintiffs' declaration'; second, that plaintiffs had made an election of remedies, and were estopped by their action at law commenced in 1906 in assumpsit for money had and received from suing the defendants in covenant upon the warranty contained in the deed of 1902; and, third, that the claim of the plaintiff was barred by the statute of nonclaim.

The plaintiffs demurred to the first and second pleas, and joined issue upon the third. The demurrer was sustained, and the parties went to trial upon the issue joined upon the third plea. By stipulation between the attorneys representing the plaintiffs and defendants a jury was waived, and the cause was tried by the judge without a jury. The court found that Girardeau committed a breach of the warranty contained in the deed of 1902 when he sold in September, 1904, the same lands to O'Brien, an innocent purchaser, and from that date became indebted to the plaintiffs in the sum of $600, that prior to the institution of this suit Charles Marthinson died, and the right of action survived to the surviving joint 'warrantees,' and that the plaintiffs' claim was duly presented to the administrators of the estate of William M. Girardeau within two years from the publication of the notice to creditors under the statute of nonclaim, and entered judgment for the plaintiffs against the defendants in the sum of $1,098.50, principal and interest. The defendants took a writ of error to that judgment, and assign six errors, as follows: First, sustaining the demurrer to the first and second pleas; second, in holding that under the third plea the burden of proof was upon defendants to show that the claim was not presented to the executors or administrators within the period required by the statute; third, the finding for plaintiffs; fourth, the holding by the court that the right of action upon the death of Marthinson survived to the plaintiffs; fifth, allowing interest upon the plaintiffs' claim 'from the date of the purchase of said lands on the purchase price or any part thereof'; and, sixth, overruling the motion for a new trial.

The plaintiffs in error in one assignment attack the order of the court sustaining the demurrer to the first and second pleas. If, therefore, one of the pleas was bad, the assignment must fail. Each error relied upon should be distinctly specified and separately assigned. The rule that, when one assignment was made attacking several distinct instructions, this court would go no further than to ascertain if the court below acted properly in giving one of the instructions,...