Haworth v. Norris

• Decision Date: 24 October 1891
• Citation: 10 So. 18,28 Fla. 763
• Parties: HAWORTH et al. v. NORRIS et al.
• Court: Florida Supreme Court

10 So. 18

28 Fla. 763

HAWORTH et al. v. NORRIS et al.

Florida Supreme Court

October 24, 1891

Appeal from circuit court, Duval county; JAMES M. BAKER, Judge.

Bill in equity by Eli Haworth and wife and Alphonso Haworth against Fannie M. Norris and another, to remove a cloud from title. Decree for defendants. Complainants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. In civil actions, other than divorce cases, as the law stood in this state after the legislation of January 29, 1885 (chapter 3582 of the Laws,) and before the act of June 4 1891, (chapter 4029 of the Laws,) a husband was, on account of the marital relation, not a competent witness either for or against his wife, but the wife was a competent witness for or against her husband in a case where he was a party and could himself testify; and the disqualification of the husband, as such, to testify for or against his wife did not of itself disqualify him from testifying as to his own interest where they were both parties, nor did such relation disqualify her from testifying as to her interest in the case.

2. Neither a father nor a mother is disqualified by the parental relation as a witness for or against a son.

3. Delivery to a third party is essential to an escrow.

4. Parol evidence is admissible to prove that a deed was never delivered to the grantee, or that it came into his possession accidentally or by mistake, or contrary to the intention of the parties, or by fraud, or otherwise illegally; but it is not admissible to show that an actual delivery to the grantee of a deed absolute upon its face was made under any agreement that a condition not expressed in the deed should be performed, and that the deed should not be operative until or unless such condition should be performed. The reason of such inadmissibility of parol evidence is that its effect would be to contradict a written instrument absolute upon its face by showing, contrary to its terms, that it was not absolute, but conditional.

5. A bill in equity to remove a cloud upon title to land cannot be sustained when the evidence shows that the land was at the time the bill was filed in the possession of the party complained of and claiming to hold under the deeds constituting the cloud. The remedy is at law.

COUNSEL

C. P. & J. C. Cooper, for appellants.

A. W Cockrell & Son, for appellees.

OPINION

STATEMENT BY THE COURT.

The bill in this cause was filed October 15, 1885. The complainants are Eli Haworth and his wife, and Alphonso Haworth, their son, and its material allegations are in substance as follows:

(1) That on October 20, 1877, Eli and his wife, at the solicitation of the defendant Emma Reed, then Emma Livingston, she having subsequently intermarried with the defendant Henry W. Reed, executed to said Emma a deed of a described five acres of land, situate in Duval county, and being a part of the Davies grant, previously owned in common by said Eli and one Keeler, and subdivided in 1875; and that in consideration of such deed to said land, it the same should be thereafter joined in and adopted by Alphonso, the said Emma covenanted and agreed to pay to complainants $500 and to teach Alphonso in the English branches until he should acquire a fair English education. That previous to making this deed to Emma the complainant Eli, on September 20, 1875 he then being the owner of said land, made a deed of the same to Alphonso, in which deed the said Ann did not join, but she retained her dower interest in the land; and that this deed was not recorded until February 19, 1878, but was shown to the said Emma, and she was fully informed of its contents at the time of the execution of the deed to her. That Emma represented to Eli and Ann that she could get the money which she had agreed to pay to them for said land from her father, whom she represented as then being in the state of Illinois, but that she wanted the deed made to her as aforesaid, to show to her father, to induce him to advance the said money, and that for that purpose alone, and before the consideration had been paid or performed, Eli and Ann delivered the deed to Emma; but she could not and did not obtain the said money from her father, and was aware that she could not at the time she made said promise and statement, and that she never has paid the consideration, or performed the part thereof to be performed in services, but utterly failed and refused so to do, although requested so to do by Eli and Ann. That the said Emma, although she promised to return said deed to complainants if the said funds were not procured from her father and paid to 'your orators and oratrix' as aforesaid, yet she did not return, but refused to return, the deed 'to your orators and oratrix;' and, contrary to the agreement on which it was given to her, and without ever paying or performing the consideration for the same, she had and procured the deed to be recorded in the records of said county, and undertook to claim title to the said land under the deed thus obtained by fraud, deception, and misrepresentation, although she was never in possession of said land.

(2) That on April 11, 1885, the said Emma and her husband, Henry, a defendant, in pursuance of said design to defraud your orators and oratrix, and to assert title under said fraudulent deed, made and executed, for some small insignificant sum,--the exact amount being unknown, but greatly less than the value of the land,--to the defendant Fannie M. Norris, wife of Caius S. Norris, a deed of said land, and Norris and wife took the title and deed with full knowledge of the above-mentioned fraud and misrepresentation of said Emma in procuring and recording the deed to her, and also with full knowledge of the right and title of Alphonso in the premises.

(3) That none of the defendants have ever had the possession or control of said lands, but Alphonso was in possession of the same at the time the deed was made to said Emma, and has been ever since, and is now, in possession thereof.

(4) That Alphonso was ready and willing at the time of the making of the deed by Eli and Ann to confirm and adopt said transaction, and make a deed of said land to said Emma, if she would carry out in good faith her said contract of purchase; but she has utterly and entirely failed so to do, and never intended so to do, but made said promise and covenant solely for the purpose of getting into her possession the deed as aforesaid.

(5) That your orators and oratrix frequently notified Norris and his wife of the fraudulent character of the deed held by Emma, and how she had obtained the same, before the pretended purchase by said Fannie, which pretended purchase is charged to be but a part of a common design between all of the defendants to use and claim title under said deed obtained by fraud and deception, and without consideration, as aforesaid.

(6) That the name of Fannie M. Norris is inserted in the deed from Emma, but, as your orators and oratrix are informed and believe, and so charge, the alleged purchase was made by Caius, and for his benefit, and that he has informed your orators and oratrix since the date of said deed that he claimed the right and title to said land under said deed.

(7) That Norris and his wife are going upon and trespassing upon the said land and cutting the wood and timber from the same, and are now attempting to carry off the wood and timber heretofore cut by them, and, although warned not to further trespass upon the land, or cut timber or wood from the same, still continue so to do. That the wood and timber on the land constitute a large part of its value, and such value will be greatly lessened by such cutting and removal. That defendants are asserting to the public that they claim the title to the land, and are thereby injuring complainants' title thereto, and depreciating its value, and preventing any sale of the same by 'your orators and oratrix,' and the said deeds upon the records cast a cloud upon the title of 'your orators and oratrix.'

(8) That the defendant Fannie, being a married woman, cannot be sued at law, and that no judgment obtained at law against her husband, Caius, can be made and collected by an execution issued out of a court of law against him.

(9) The prayer of the bill is for an injunction restraining defendants from claiming or asserting title to or bringing suit for the land under the said deeds, and from going on or trespassing upon the same, and from conveying or incumbering the same, and for a surrender of such deeds for cancellation by any of the defendants having the same, and for general relief and subpoena.

On the day the bill was filed a temporary injunction in accordance with the prayer of the bill was issued, the same having been served on Norris and wife on the 17th day of the same month.

On the 7th of December Reed and wife answered the bill, stating that the deed from Haworth and wife to said Emma was executed on the 27th of October, 1877, and recorded on November 19th following.

She, answering of her knowledge, and her husband on information and belief, states the facts and circumstances as to the execution of the deed to be as follows:

That several weeks before the deed was executed to her she had 'refugeed' from Jacksonville, Fla., where she then temporarily resided, for the benefit of her health, to the beach below Mayport, in said county, as the yellow fever was then prevailing, or supposed to prevail, in Jacksonville. That she boarded a few weeks at the Atlantic House, on said beach, and, meeting said Eli and Ann, she was prevailed upon to leave said house, at that time especially exposed to equinoctial storms, and take board at the residence of the said Eli at the old Pablo Plantation, in said county. ...