Edwards v. Rives

• Decision Date: 01 May 1895
• Citation: Edwards v. Rives, 35 Fla. 89, 17 So. 416 (Fla. 1895)
• Parties: EDWARDS v. RIVES.
• Court: Florida Supreme Court

17 So. 416

35 Fla. 89

EDWARDS v. RIVES.

Florida Supreme Court

May 1, 1895

Appeal from circuit court, Marion county; J. J. Finley, Judge.

Bill by Adam Rives against William Edwards for specific performance.Defendant having died, Julia A. Edwards, executrix was substituted as defendant.Plaintiff had decree, and defendant appeals.Reversed.

Syllabus by the Court

SYLLABUS

1.A party to a suit against the guardian of an insane person cannot be examined as a witness in regard to any transactions or communications between himself and such insane person, if such person was insance at the time of such examination unless the said guardian has testified to the same transactions and communications, or the testimony of such insance person thereto has been given in evidence.

2.In a suit for the specific performance of a written contract for the sale of land, and the denial of the alleged contract puts upon the plaintiff the burden of proof; and he must establish, by clear and satisfactory evidence, not only the making of the contract, but the terms of it, also, to entitle him to a specific performance thereof.

3.Where a written contract has been lost, and a diligent, bona fide, but fruitless, search has been made for it in all places where it would probably have been kept, secondary evidence of its contents is admissible.

4.Where neither the language nor any part of the contents of a lost paper is given by the witness, his opinion as to the meaning or effect of the instrument is incompetent to prove its contents.

5.An executory agreement for the sale of land, which fails to describe or otherwise identify the land, and name the purchase price and time of payment, is not enforceable is a court of equity.

6.The proof of the contents of a lost paper ought to be clear and satisfactory.

COUNSEL

W. H. Hampton, for appellant.

Evans Haile, for appellee.Adam Rives, the appellee, on the 1st day of April, A.D. 1887, filed his bill against William Edwards in the circuit court for Marion county, in chancery, and therein prayed for the specific performance of a contract for the sale of real estate alleged to have been entered into between him and William Edwards.It was alleged in the bill that about the month of November, 1874, William Edwards did contract to sell, and did sell, to Adam Rives that certain parcel of land situated in the county of Marion in the state of Florida, and particularly described as being the W. 1/2 of the N.E. 1/4 of section 4, in township 12 S range 20 E., containing 80 acres, at the stipulated price of $5 per acre, or an aggregated sum of $400, and did at the same time put him in possession, as the vendee and owner thereof; and, as such vendee and owner, he has ever since been continuously, and now is, in the actual occupancy and possession of said tract of land, and resides thereon with his family, and has made valuable improvements, of various kinds, thereon.At the time of the sale of this tract of land, William Edwards made and delivered to Adam Rives a written memorandum or agreement to sell and convey said land to him, the provisions of which writing were that William Edwards agreed and bound himself to execute and deliver to Adam Rives good and perfect titles to said tract of land so soon as William Edwards could perfect his own title thereto, the legal title thereto being at the time in another party, and upon the payment to William Edwards by Adam Rives of the price of five dollars per acre.By some unavoidable accident, Adam Rives has lost this written memorandum, so that it is not now in his custody, possession, or control.Adam Rives has fully paid to William Edwards, at various times, in cotton, corn, and other goods and chattels, and in work and labor performed for him at various times at his request, and at stipulated prices, the stipulated price for said land, and even more; yet William Edwards has neglected, failed, and refused to convey said land to Adam Rives.

William Edwards filed his answer to said bill on the 29th of April, A.D. 1887, and therein admitted that Adam Rives had been in possession of the land in controversy since November, 1874, but alleged that he was in possession thereof as a tenant, and not as a purchaser.He denied the making of the contract as stated in the bill.A general replication to this answer was filed on the 6th of June A.D. 1887.

William Edwards was afterwards adjudged a lunatic, and Julia A. Edwards was, by consent of counsel, appointed his guardian litem on the 6th of March, A.D. 1888.Afterwards William Edwards died testate, and Julia A. Edwards, who was the executrix of his last will and testament, was made a defendant to said suit, with the consent of counsel, on the 1st day of April, A.D. 1889.

The cause was afterwards heard, and a final decree for the specific performance of the alleged contract was rendered therein by the chancellor on the 28th of June, A.D. 1890.Whereupon Julia A. Edwards, as executrix, etc., appealed to this court, and assigned the granting of this decree for error.

OPINION

MALONE, J.(after stating facts).

Two questions of paramount importance are presented by the petition of appeal, viz.: (1) Whether Adam Rives was a competent witness as to the transactions and communications between himself and William Edwards; and (2) whether the chancellor erred in granting a decree for the specific performance of the alleged contract.We will proceed to discuss these questions in their order.

I. Adam Rives was the plaintiff in the suit, and, at the time of his examination as a witness, William Edwards was insane, and represented in said suit by Julia A. Edwards, as his guardian ad litem.Under these circumstances, Adam Rives was an incompetent witness as to any transaction or communication between himself and William Edwards, and his testimony touching these transactions and communications should have been suppressed.Rev. St. § 1095;Holliday v McKinne,22 Fla. 153;Tunno v. Robert,16 Fla. 738;Stewart v. Stewart,19 Fla. 846;McClel. Dig.p. 518, § 24.The answer or William Edwards to the bill does not remove the inhibition of the statute as to the competency of Adam Rives as a witness in his own behalf to transactions and communications between himself and William Edwards, and bring him within the exception of the statute.Therefore, in considering the...