Gamble v. Hamilton

• Decision Date: 26 January 1893
• Citation: 31 Fla. 401,12 So. 229
• Parties: GAMBLE v. HAMILTON et al.
• Court: Florida Supreme Court

12 So. 229

31 Fla. 401

GAMBLE v. HAMILTON et al.

Florida Supreme Court

January 26, 1893

Appeal from circuit court, Sumter county; Thomas F. King, Judge.

Suit by J. R. G. Hamilton and H. B. Howse against S. J. Gamble executor, to declare a tax deed to defendant's executor void, and to enjoin defendant from prosecuting a suit of forcible entry and detainer against plaintiff. Defendant pleaded adverse possession, and the executor of one Branch filed a cross bill. There was a decree dismissing the cross bill and granting the prayer of plaintiff, and Gamble appeals. The decree dismissing the cross bill is affirmed. The decree granting the prayer of the original bill is reversed.

Syllabus by the Court

SYLLABUS

1. Where B, has paid the taxes of H. for several years, and then purchased at a tax sale, and after such purchase has written to H. that he has paid the taxes on the land and taken the receipt as paid the taxes on the land and taken the receiptage then gets a tax deed upon the certificate of sale and does not inform H. of that fact, and subsequently agrees to pay the taxes for H. and then makes a contract with H. for the purchase of the land, the tax deed is fraudulent and void as against H. and those in privity with him.

2. One who purchases land with actual notice that another claims it and is exercising dominion over it, takes it subject to all the rights and equities of the person so claiming and exercising dominion over the land.

3. One who claims title to land, legal in its character, cannot maintain a bill in equity against the person in possession of the land, or any part thereof, to remove a cloud from his title.

4. Where B. purchased land from H. by parol contract, and H. put him into possession, and part of the purchase money remained unpaid, the possession of B. is not adverse to the title of H., but in subordination thereto.

5. A party may convey land held in the actual possession of another, provided that such actual possession is not adverse.

6. Where a party endeavors to adjust and settle a disputed claim between vendor and vendee of a parcel of land, and fails, and some years afterwards purchases the land from the said vendor, with his own funds, and obtains a deed thereto, he acquires the title, subject to any existing obligations of the vendor.

COUNSEL

Hocker & Mabry, for appellant.

R. B. Hilton and J. J. Finley, for appellees.

OPINION

YOUNG J.

A bill was filed in the circuit court in and for Sumter county in February, 1884, by J. R. G. Hamilton against S. J. Gamble, as executrix of the last will and testament of L. B. Branch, deceased.

The bill alleges the sale to and conveyance from one Howse to complainant, on the 8th of November, 1883, of a quarter section of land situated in Sumter county; that complainant went into possession of the land under said conveyance, and was in possession at the time of filing the bill; that on the 15th of November, 1883, defendant commenced proceedings against complainant for a forcible entry and detainer of said land, which was still pending; that said Howse was, in 1873 and 1874, and for many years prior thereto, the owner of said land, and seised in fee thereof; that in 1874 said land was sold for the taxes of 1873, and that defendant's testator purchased at the sale, and the following year obtained a tax deed; that at the time of such purchase, and at the time the tax deed was obtained, said testator was the agent of Howse for the payment of the taxes on the land, and that the purchase at tax sale and obtaining the tax deed was a fraud upon Howse.

The bill was demurred to, one of the grounds being that Howse was not a party to the bill. This ground of demurrer was sustained, and the others overruled, and the bill was amended by making Howse a party complainant, and by alleging that the tax deed was a cloud upon the title of complainants, and a fraud upon their rights. The prayer of the bill is that the tax deed 'be set aside and declared to be null and void and that the defendant be enjoined from further prosecuting the suit for forcible entry and detainer.' The defendant answered the amended bill, admitting that Howse made a deed to Hamilton, as alleged; denies that the defendant's testator was the agent of Howse for the payment of the taxes on the land; and avers that Howse placed no funds in his hands for the payment of taxes, either before or after the sale; admits that he did, for accommodation, pay the taxes of persons who placed funds in his hands for that purpose; alleges that after respondent's testator obtained the tax deed, and some time in the year 1876, the said testator proposed to Howse, 'in order to quiet his title and possession,' to purchase all claim of said Howse to the land, and that Howse accepted this proposition, and agreed to take $150, of which $30 was paid cash, and that respondent believed that all of it had been paid until Howse wrote to the widow of his testator, claiming that there was an unpaid balance of $120; avers that after this transaction between Howse and his testator, Branch, Howse 'acknowledged Branch to be the owner,' and that the tax deed was put on record by Branch, Howse agreeing and consenting thereto, and offering to give bond that no one should redeem from the tax sale, or interfere with the tax deed; avers that the widow of Branch was acting as the agent of respondent in the management of the estate of Branch, and that she would have paid the sum of $120 claimed by Howse to be due but for the fact that the complainant, Hamilton, to whom she had gone to write the reply to Howse, advised her not to pay it, and offered to obtain a 'title' to the land from Howse for the executor; that complainant, Hamilton, saw all the letters from Howse, and wrote the answers for Mrs. Branch, and was fully informed as to all facts in relation to the claim of Branch during his lifetime, and his executor afterwards, to the land and the possession thereof. The answer also denies that Hamilton ever went into possession under his purchase from Howse, but avers that he has at various times, by threats to tenants, and attempts to collect rent from them, and other 'stratagems,' endeavored to get possession of the land, but has failed to acquire any such possession 'as would be lawful or adverse to respondent,' and also alleges that the 'case of forcible entry and detainer' has been dismissed. The answer was accompanied by a plea of seven years' continued adverse occupation and possession of the land under claim of title founded upon a written instrument. A general replication was filed to the answer and plea. There was a cross bill filed by the executor of Branch, alleging that Branch had, in 1876, purchased the land from Howse for $150, and paid part of the purchase money, and that Howse had put Branch into possession, which possession he held till his death, and that since his death it has been held by the executor, and also alleging substantially the same facts set forth in the answer, and praying that Hamilton be enjoined from 'committing waste, spoil, or destruction, and from taking possession or cutting timber or other trees growing on the land, or interfering with orator's tenants and crops growing on the land, and from any and all interference with said land in any manner;' and also praying that Hamilton be decreed to hold the land in trust for and to convey to the executor of Branch. There was a demurrer to the cross bill, which was sustained, and then it was amended by making Howse a party defendant, and by adding to the prayer a prayer to have the deed from Howse to Hamilton canceled, 'made null, and set aside as a cloud upon the title of the said Branch.' Hamilton answered the cross bill, and denies that Branch bargained for or purchased the land in 1876, but admits that he was informed that there was a negotiation for its purchase in 1877; but avers, on information and belief, that it was abandoned by Branch, and that Howse did not put him into possession of the land; that he, Hamilton, purchased from Howse in November, 1883, for the sum of $2,000; that the possession of Branch did not commence seven years before the filing of the original bill, and denies that Branch or his executor were in the legal and peaceable possession for seven years prior to 18...