Indian River Mfg. Co. v. Wooten

• Decision Date: 17 March 1908
• Citation: 46 So. 185,55 Fla. 745
• Parties: INDIAN RIVER MFG. CO. v. WOOTEN et al.
• Court: Florida Supreme Court

46 So. 185

55 Fla. 745

INDIAN RIVER MFG. CO. v. WOOTEN et al.

Florida Supreme Court, Division B.

March 17, 1908

Appeal from Circuit Court, Brevard County; Minor S. Jones, Judge.

Bill by the Indian River Manufacturing Company against F. M. Wooten and others. Decree for defendants, and complainant appeals. Reversed and remanded.

Syllabus by the Court

SYLLABUS

Where an answer to a bill in chancery under oath is waived, and the answer denies the material allegations of the bill, the general rule is that it is incumbent on the complainant to prove those allegations by a preponderance of the evidence and where the object of the bill is to obtain the reformation of a written lease of land because of an alleged mistake or omission therein, an answer under oath being waived, and the answer of the parties who executed the lease denies that any mistake or omission occurred in the drawing up or execution of the lease, it is incumbent on the complainant to show by clear and satisfactory evidence that such mistake or omission occurred, and if the complainant fails to make such proof he is not entitled to relief in a court of equity.

In other to obtain the reformation of a written instrument on account of a mistake in drawing it so that it does not express the true agreement of the parties, it is essential to prove that the reform sought is according to the agreement of both parties to the instrument.

Under the law of comity the courts of this state will entertain a suit in chancery brought by a foreign corporation, where the question presented by the bill is the right of such a corporation to protect its real estate froml trespass, of which equity has jurisdiction, inasmuch as such a corporation is not forbidden by our statute law from holding real estate.

Where a bill is filed by a foreign corporation to protect its real estate located in this state from trespass, and the answer alleges that the complainant corporation is a fraudulent one organized under the laws of New Jersey, and intended to evade the requirements of our own laws that a corporation shall have a cash capital equal to its stock or property taken at a just valuation in payment for stock, such a defense is unavailing, in the absence of a statute declaring a different policy, when the evidence does not show that in organizing the corporation a fraud was committed against the laws of New Jersey, or some fraudulent evasion of those laws occurred.

COUNSEL

A. H. King and A. W. Cockrell, for appellant.

Geo. M Robbins, for appellees.

OPINION

HOCKER J.

This cause was before this court at the June term 1904, and our decision is reported in 48 Fla. 271, 37 So. 731. The decree appealed from was there reversed because of the lack of necessary parties, and the cause remanded to the lower court for further proceedings. After the remand Frank M. Wooten and others filed an amended cross-bill against W. M. Dallam, Walter S. McNair, Thomas J. Wooten, Benjamin Septimus Brigg, and Robert Thomson Heselton, thus including the parties who this court held were necessary to the cause. The cross-bill and exhibits are as follows:

'To the Honorable Minor S. Jones, Judge of the Circuit Court of the Seventh Judicial Circuit of Florida in and for Brevard Couny, Sitting in Equity:

'Frank M. Wooten, O. C. Hansell, and Newton Taylor, of Brevard county, and Daniel Bell and J. J. Griffin, of Volusia county, Florida, bring this their amended cross-bill against the Indian River Manufacturing Company, a corporation under the laws of the state of New Jersey, of Camden, New Jersey (the same being admitted to be a corporation for the purpose of this cross-bill only), and against Wm. M. Dallam, and against Walter S. McNair and Thomas J. Wooten, of Maxton, North Carolina; and against Benjamin Septimus Brigg, of Burlington House, Keighley, Yorkshire, England, and Robert Thomson Heselton, of Bradford, Yorkshire, England, as trustees and personally; and thereupon your orators complain and say:

'(1) In November, 1890, William M. Dallam, as trustee, etc., borrowed $5,000 of the Land and Mortgage Bank of Florida, and gave as security a mortgage on the Bernado Segui grant of some 16,000 acres in Brevard and Volusia counties (reference being made to the official plats and field notes of the United States survey for its more definite location and description). The mortgage was foreclosed, and the land was bid in by Benj. S. Brigg and Robert T. Heselton, as trustees (they represented the mortgage creditor). A suit was then instituted by the said Dallam to set aside said foreclosure proceedings and sale upon grounds not material to this case, and while this was pending your orator, Frank M. Wooten, offered to purchase a ten-year lease of the grant, with the turpentine privilege, for $4,000, or to pay $6,000 for a ten-year lease, with turpentine privilege and the right cut and carry away the timber and wood. It was a condition precedent that the said Brigg and Heselton and said Dallam should compose their difference, so that he could get a good title. The mortgage debt and expenses amounted to about $6,000, and one H. H. Buckman claimed a lien which required $500 to clear off; so it was arranged between the said Brigg and Heselton, the said Dallam, and the said Buckman that Messrs. Brigg and Heselton should take the $6,000 and satisfy Buckman, and should make a ten-year lease of the grant to Wooten, carrying the turpentine privilege and the right to cut and carry away the wood and timber thereon, and that they should then deed the land, subject to this lease of turpentine and timber privileges, to the said Dallam.

'(2) In the above transaction the several parties were represented by attorneys at law; the said Brigg and Heselton by W. B. Owen, Esq., the said Dallam by Mr. A. H. King, and the said Wooten by Messrs. Barrs & Bryan. On November 24, 1899, your orator, Frank M. Wooten, carried out his part of the trade by depositing the sum of $6,000 in the Commercial Bank of Jacksonville, to be delivered over to Owen upon his clients, Brigg and Heselton, tendering the said ten-year lease, with turpentine and timber privilege, and the said Owen contracted in writing to procure such a lease, and in the name of his clients gave your orator written authority to enter at once on said grant and use the same for turpentine and timber privileges pending the delivery of the lease, which the said Wooten, your orator, did. A copy of the said written authority and contract, made when the $6,000 was deposited, is attached to and made a part of this cross-bill and marked 'Exhibit A,' the original to be produced when required.

'(3) On November 27, 1899, the lease was prepared and executed to your orator and Walter S. McNair and Thomas J. Wooten, the two latter having subsequently sold out to your orator; but by a mistake of the party who drew it the right to cut and carry away the wood and timber on the grant was not inserted, and this mistake was not detected when the lease was signed, nor did your orator learn of the omission until very recently. At the same time that the lease was executed, the deed to Dallam was made, conveying to him the grant, subject to the lease, so that by the omission in the lease the wood and timber, which your orator, Wooten, had paid for, was conveyed by mistake to the said William M. Dallam, who was not a purchaser without notice for a present valuable consideration, but who had taken the land in settlement of a pre-existing claim, and also with actual notice that the timber upon it had been sold to and paid for by your orator, Wooten, and that it was this sale of the timber which furnished the money to pay up the mortgage debt and procure the settlement whereby he was to get the land free of the timber; so that your orators say that, while the legal title to the timber was conveyed by mistake to the said Dallam, instead of to said Wooten, the said Dallam took said legal title in trust and for the use and benefit of the said Wooten, who had paid for the same and was the equitable owner thereof. (The lease was made to your orator and two others, whom your orator subsequently bought out.)

'(4) Upon paying the $6,000 purchase money and getting the contract and permission to enter, shown as Exhibit A, your orator, Frank M. Wooten, proceeded immediately to the land and entered thereon and commenced its development as a turpentine farm, at the same time pursuing a wood business and supplying factories at Titusville with fuel. A turpentine still and store were erected on the land, and houses for the laborers, and the premises were occupied by your orator, Frank M. Wooten, and his servants and employés, continuously from November 25, 1899, and have been so occupied to the present; your orator's open and notorious possession being notice to all the world of his rights in the property.

'(5) On the 9th day of December, 1901, while your orator, Frank M. Wooten, was in actual occupation and possession of said grant, and pursuing openly his business of turpentining the timber and cutting and selling wood therefrom, the defendant, the Indian River Manufacturing Company, took a deed to said premises from the said William M. Dallam for an expressed consideration of $1 and other considerations not mentioned, but which your orators believe and allege consisted of the bulk of the stock of the defendant company, less what had been conceded to the promoters thereof for promotion. Said defendant company was not a bona fide purchaser for a valuable consideration and without notice of your orator's rights; for the corporation was organized to hold the title of this property, which it paid for in its stock, which had no value, and the said Dallam was one of the agents of and so closely

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