Florida Land Rock Phosphate Co. v. Anderson

• Decision Date: 03 July 1905
• Citation: 39 So. 392,50 Fla. 516
• Parties: FLORIDA LAND ROCK PHOSPHATE CO. v. ANDERSON.
• Court: Florida Supreme Court

39 So. 392

50 Fla. 516

FLORIDA LAND ROCK PHOSPHATE CO. v. ANDERSON.

Florida Supreme Court, Division A.

July 3, 1905

On Rehearing, Oct. 17, 1905.

Appeal from Circuit Court, Levy County; James T. Wills, Judge.

Action by Herbert L. Anderson against the Florida Land Rock Phosphate Company and others. From a judgment for plaintiff the defendant named alone appeals. Reversed.

Syllabus by the Court

SYLLABUS

A clerk of the circuit court, in making up a transcript of the record for the Supreme Court, should comply with the requirements of the special rules adopted by this court for making up such transcripts.

It is the duty of the party resorting to an appellate court to see that his transcript of record is properly prepared in compliance with the rules of court, and to make the errors complained of clearly to appear.

The general rule in equity is that all persons materially interested, either legally or beneficially in the subject-matter of a suit, must be made parties either as complainants or defendants, so that a complete decree may be made, binding upon all parties.

The court cannot properly adjudicate the matters involved in the suit, when it appears that necessary and indispensable parties to the proceeding are not before the court.

Although the question of parties was not raised in the court below either by demurrer, plea, or answer, and has not been suggested in this court, if it plainly appears from the record, especially from the bill and exhibits, that there is a lack of necessary and indispensable parties, this court will notice the fact on its own motion and reverse and remand the cause, with leave to add such parties and for such other proceedings as may be conformable to law.

In a proceeding in equity to remove a cloud from the title and to have a conveyance canceled as fraudulent, the parties executing such conveyance against whom fraud is charged are necessary and indispensable parties to such proceeding especially so if such conveyance contain the covenants of general warranty.

On Rehearing.

In the Supreme Court the rehearing of a cause is only authorized by a rule of court, and is seldom allowed.

The appellate court, equally with suitors, is bound by its rules and they must be construed as statutes would be construed.

Upon an application for a rehearing of a cause decided by the Supreme Court it is irregular, and an infraction of rule 25 (37 South. ix), adopted March 2, 1905, to accompany the petition with a written argument and the citation of authorities, or to file an argumentative petition, with the citation of authorities therein, or to assume any new ground or position not taken upon the argument, or in the points made upon which the cause was submitted.

An application for rehearing of a cause in the Supreme Court that is practically a joinder of issue with the court as to the correctness of its conclusions upon points in its decision that were expressly considered and passed upon, and that reargues the cause in advance of a permit from the court for such argument, is violative of the rule governing applications for the rehearing of causes.

An application for rehearing of a cause in the Supreme Court presented after the expiration of 30 days after the filing of the judgment, decree, or order of the court, unless further time therefor is expressly allowed by the court, is violative of the rule governing applications for the rehearing of causes.

An application for rehearing of a cause in the Supreme Court which is violative of the rule governing applications for the rehearing of causes will be denied by the court without further consideration.

A petition for a rehearing, which suggests nothing that has not been fully considered by the court in making its decision, will be denied; the proper function of a petition for a rehearing being to present to the court some point which it overlooked or failed to consider, by reason whereof its judgment is erroneous.

COUNSEL

John G. Reardon and W. A. Hamilton, for appellant.

Otis T Green, for appellee. The transcript in this case consists of 376 typewritten pages. We have tried to set forth in the following statement a synopsis of the pleadings, evidence, orders, decrees, and proceedings generally which will be sufficiently full for an intelligent understanding of the opinion. This has been a task of some difficulty, and the statement is necessarily quite condensed.

On the 23d day of December, 1896, appellee filed his original bill in chancery in the circuit court for Levy county against appellant, John Cline, Joseph T. Jones, C. B. Magruder Central Trust Company, a corporation, as trustee, Thomas A. Banning, C. C. Linthicum, Henry H. Graham and George C. Stevens as copartners under the firm name of Stevens, Graham & Co., and H. H. Graham, alleging therein, among other things: That appellee, as trustee, was the owner and in the actual possession of certain lands in the counties of Levy and Marion, which are fully described therein, appellee's title thereto being acquired through three conveyances, copies of which are attached as exhibits--the first being a tax deed from the Governor and Secretary of State to appellee, bearing date the 1st day of August, 1895, conveying a portion of the lands and reciting that they had been certified to the comptroller for the nonpayment of taxes under the provisions of chapter 4010, p. 1, Laws of 1891; the second and third conveyances being executed by the respective sheriffs of Levy and Marion counties to appellee on the 1st day of June and the 3d day of November, 1896, respectively, which said sheriff's deeds are based upon sales under an execution issued on a judgment recovered in the circuit court for Marion county by Alexander P. Price, as plaintiff, against George C. Stevens and H. H. Graham, under the firm name of Stevens, Graham & Co., as defendants, on the 6th day of December, 1893, for the sum of $23,500. That the said Price, on or about the 1st day of June, 1891, purchased all the lands in question from the then owners, and took an obligation from such owners to convey the same to said Price or to any one named by him. That Price sold the lands to the firm of Stevens, Graham & Co., and from time to time caused conveyances thereof to be executed to said firm, until, on or about the 1st day of May, 1893, all of the lands had been conveyed to said firm; Price taking no conveyance to himself from any of the owners, but for the purpose of saving expense having all the conveyances made to said firm. 'The agreement and understanding between the parties at the time of said conveyance was that the said Price should have and retain a vendor's lien on the said lands for the payment of any unpaid balances of the purchase money; and that the said Stevens, Graham & Co., at a time subsequent to the said conveyance, acknowledged in writing that the said Price held a vendor's lien upon said lands for the balance of the unpaid purchase money.' That the judgment recovered by Price for the sum of $23,500 against Stevens, Graham & Co., which has already been described, 'was recovered, held, and enforced by said Price as a vendor's lien upon said lands.' That Stevens, Graham & Co., 'at the time they took title to said lands, were engaged in the business of buying and selling phosphate lands in the state of Florida, and, to facilitate the sale of the land held and controlled by them, the said Graham, Stevens & Co. were accustomed to organize corporations, to which lands sought to be sold by them were conveyed, and by the sale of the capital stock of said corporations, and sale of the bonds secured by liens upon the lands, the said Stevens, Graham & Co. realized moneys.' That, in pursuance of said plan, said firm organized the corporation known as the Florida Land Rock Phosphate Company,' and conveyed said lands to said corporation, which conveyance was of a prior date, though the same is not set forth, to the date of the 'entry of the judgment in favor of the said Price.' That 'the said Stevens, Graham & Co. subscribed for, and took, and now hold and own, all of the capital stock of the Florida Land Rock Phosphate Company, and was in fact, as well as in law, the corporation itself, and the said Florida Land Rock Phosphate Company took title to the said lands with actual knowledge and notice of the vendor's lien held and claimed by the said Price upon all said lands for the balance of the unpaid purchase money thereof, and that the said corporation took and held no better title than was owned and held by the said Stevens, Graham & Co., whom your orator shows executed a paper writing, acknowledging that the said Price held and owned a vendor's lien upon said lands.' That the corporation, and all persons in interest as holders and owners of its stock or bonds, had actual notice of the vendor's lien claimed by the said Price.' That on the 1st day of July, 1893, the Florida Land Rock Phosphate Company executed a mortgage upon all the lands to the Central Trust Company, as trustee, to secure the payment of certain bonds issued by the said phosphate company, which mortgage was recorded in the public records of the respective counties of Levy and Marion. That none of said bonds had ever been negotiated, but, through fraudulent representations to the Central Trust Company, Henry H. Graham, one of the firm of Stevens, Graham & Co., had obtained possession of all of said bonds, 'and that the said Graham is now in the actual possession thereof, claiming ownership of same in himself, and has refused to deliver the same up for cancellation, and the complainant shows that the mortgage to secure said bonds is not a lien upon the lands, because complainant shows that the complainant acquired title to the lands from...