Farrell v. Forest Inv. Co.

• Decision Date: 31 January 1917
• Citation: 74 So. 216,73 Fla. 191
• Parties: FARRELL v. FOREST INV. CO.
• Court: Florida Supreme Court

74 So. 216

73 Fla. 191

FARRELL v. FOREST INV. CO.

Florida Supreme Court

January 31, 1917

Appeal from Circuit Court, St. Johns County; George Couper Gibbs Judge.

Suit by the Forest Investment Company against R. L. Farrell. Decree for plaintiff, and defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

Where a court of equity hears and determines a controversy of such character that jurisdiction may be given by consent, and the parties, without objection or question as to the mode of procedure, go on to a hearing, neither should be heard to complain afterwards as to the court's jurisdiction.

Where a bill in equity has for its principal object an partition of lands, and other questions arise as to complainant's interests which are sought to be determined as incidental to the main relief, and such questions arose out of the relations existing between complainant and defendant at the time when the incidents occurred giving rise to the differences between them, the court will determine the entire controversy.

A bill in equity is not necessarily multifarious because there may be united in it several causes of action. If all the different causes of action united in the bill grew out of the same transaction, and all the defendants are interested in the same rights, the bill will be maintained.

The objection of multifariousness, when made for the first time at the hearing, will not be sustained, where the real point in the controversy can be determined as well in the one cause as if there were many separate suits, and the objection does not appear to be so grave as to interpose an obstacle to the proper administration of justice.

In considering the question of multifariousness the matter particularly involved in convenience in the administration of justice, and if this can be accomplished by the mode of procedure adopted, an objection for multifariousness should not be allowed.

Where a court of equity takes jurisdiction of a cause for one purpose, it will proceed with the determination of all the matters presented.

Where a corporation entered into copartnership with an individual and the copartnership transacted business and dissolved, and one of the copartners seeks a partition of lands held by the members of the partnership in common, the court will not consider the question of the validity of such copartnership where the interests of third parties are not involved.

The chancellor's findings and conclusions on the facts will not be reversed, unless it clearly appears that he erred in such conclusions.

Where an answer to a bill in equity is made under oath, the averments contained in it which are responsive to the bill and set up facts to which other testimony could be received are to be taken as true, unless disproved by evidence of greater weight than the testimony of one witness.

A sworn answer is evidence in the defendant's favor in so far as its statements are responsive to the allegations of the bill. Under rule 41 of the Rules of Practice in the Courts of Equity of the United States as prescribed by the Supreme Court of the United States, and amended in 1871, which by statute were made the Rules of Practice in Courts of Equity in this state, the complainant in order to avoid the effect of an answer was required to expressly waive in the bill the oath of the defendant to the answer.

The new rules of practice for the Courts of Equity in the United States as promulgated by the Supreme Court of the United States in November, 1912, make no provision for the complainant waiving in his bill an answer under oath, and as the new rules abrogated the old ones; and, as there is no provision in the rules prescribed by this court on the subject as applied to the practice in the courts of this state, a complainant cannot deprive the defendant of the benefit of his answer under oath by expressly waiving it in the bill.

A sworn answer does not have the effect of evidence in defendant's behalf as to averments of fact set up by way of affirmative defense, nor as to averments of fact which testimony would not be admissible to prove.

Section 2682 of the General Statutes of Florida, 1906, does not expressly prohibit a foreign corporation from bringing a suit in this state until it has complied with the requirements of the statute.

When the defendant desires to raise the question of a foreign corporation's right to maintain a suit in this state, the defense should be specifically made.

COUNSEL W. W. Dewhurst, of St. Augustine, and H. L Anderson, of Jacksonville, for appellant.

MacWilliams & Bassett and David R. Dunham, all of St. Augustine, for appellee.

The Forest Investment Company, a foreign corporation, commenced its suit in the circuit court for St. Johns county in November, 1913, against R. L. Farrell for partition of certain lands, to declare a trust in certain of them, and for an accounting for the proceeds arising from the sale of cypress timber taken from the said lands by the defendant.

The bill alleges that the complainant, Forest Investment Company, the appellee here, is a foreign corporation doing business in the state of Florida, 'having duly complied with the laws pertaining to foreign corporations'; that the complainant and R. L. Farrell, the appellant here, are owners in fee simple as tenants in common of the following described lands, viz.: All of sections 5, 6, 7, 8, 16, and 18, and all of section 17 except the N.E. 1/4 of S.E. 1/4, all in T. 9 S., R. 29 E., in St. Johns county, and consisting of about 4,447 acres of land. Also all of sections 32 and 33, and all of section 31 except the W. 1/2 of N.W. 1/4 and S.E. 1/4 of N.W. 1/4 in T. 8 S., R. 29 E. That Farrell acquired the title to said land, except 120 acres in section 31 described as the S. 1/2 of S.W. 1/4 and N.W. 1/4 of S.W. 1/4, from R. C. Wilson and wife, and conveyed to complainant an undivided one-third interest in it; that the 120 acres above described were purchased by Farrell from the Model Land Company, a corporation, but that before the purchase Farrell represented to complainant the necessity for the purchase of that tract by complainant and Farrell, and after complainant agreed that it should be bought by Farrell & Co., in which complainant had a third interest, Farrell took the title in his own name; that $400 of the purchase price of the land was paid with the funds of the company, and complainant was ready to pay, and tendered, the balance of its part in the purchase price; that by reason of these facts complainant was entitled to a third interest in the 120-acre tract, and Farrell should be declared to hold the same in trust for complainant.

That the S. 1/2 of section 8 T. 9 S., R. 29 E., was sold by complainant and Farrell to Charles Yelvington upon Farrell's representation that it was to their interest to sell, that it was sold for a price lower than its value, of which complainant was ignorant, and that after the sale Farrell within a month purchased it from Yelvington in his own name, and thereby sought to profit by the transaction at the expense of complainant. The complainant offered to return to Ferrell the money received by it from the sale, and claimed that by reason of this transaction Farrell should convey to complainant a third interest in said lands. The complainant prayed that both the above-described tracts of land be included in the petition.

The bill also alleged that in February, 1911, the complainant conveyed to Farrell its 'undivided third interest in the license and right to cut, box and work for turpentine purposes all the pine timber suitable for such purposes for a period of three (3) years' upon all the lands above described except the W. 1/2 of the N.W. 1/4 and the S.E. 1/4 of N.W. 1/4 of section 31 in T. 8 S., R. 29 E. The bill further alleges that the lands above described are owned by the complainant and Farrell in common, the complainant having a one-third interest and Farrell a two-thirds interest; that Farrell has cut, removed, and sold the cypress and other timber, other than the pine timber from the land without authority from complainant; that the proceeds have been applied to defendant's own use and never accounted to complainant for the same.

The bill waives an answer under oath, and prays that the complainant may be decreed to have a third interest in common with Farrell in the S. 1/2 of S.W. 1/4 and N.W. 1/4 of S.W. 1/4 of section 31, T. 8 S., R. 29 E., upon the payment by complainant to Farrell of $266.67 tendered as alleged; that Farrell be required to convey to the complainant a third interest in the S. 1/2 of section 8, T. 9 S., R. 29 E., upon the payment to Farrell of the money received by complainant with interest as its share of the price of same received from Yelvington; that a partition of the lands be decreed to be made, and that if the land cannot be partitioned without injustice to the parties, it be sold and the proceeds of the sale, after paying costs and a reasonable attorney's fee, be divided between the complainant and defendant according to their respective rights; that their rights be ascertained and declared, and that an account be taken of the cypress and other timber except pine timber that has been cut, removed, and sold by Farrell, and that he be decreed to pay to the complainant its part thereof that may appear to be due, the complainant on its part to pay to the defendant what, if anything, shall appear to be due from it to the defendant upon taking the account; that Farrell be restrained from collecting and receiving any money from the sale and disposition of any more cypress and other timber except pine timber from the said lands, and for general relief and subpoena.

The bill was answered by Farrell under oath, in which it was...