Johnson v. Mckinnon

• Citation: 34 So. 272,45 Fla. 388
• Parties: JOHNSON et al. v. McKINNON.
• Decision Date: 03 February 1903
• Court: United States State Supreme Court of Florida

34 So. 272

45 Fla. 388

JOHNSON et al. v. McKINNON.

Florida Supreme Court, Division A.

February 3, 1903

Appeal from Circuit Court, Jackson County; Evelyn C. Maxwell, Judge.

Bill by A. D. McKinnon against Seth Johnson and others. Decree for plaintiff. Defendants appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. It is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary tio entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing.

2. While a general demurrer to a bill, as for want of equity will be overruled if there is any ground of equitable relief stated in the bill, even if there are any number of grounds of special demurrer, it is also true, in equity as at law that a pleading is to be construed most strongly against the pleader.

3. A vendor's lien is that lien which in equity is implied to belong to a vendor for the unpaid purchase price of land sold by him, where he has not taken any other lien, or security for the same, beyond the personal obligation of the purchaser. Such lien is not the result of any agreement between vendor and vendee, but is simply an equity raised by the courts for the benefit of the former, by whom it will be enforced or denied between parties as the exigencies of each particular case may seem to require.

4. Every unpaid indebtedness for purchase money of real estate does not necessarily give to the grantor a vendor's lien even though he has not taken any other lien, or security for the same, beyond the personal obligation of the purchaser. Being created by inference alone, and enforceable only in a court of equity, it is for such court to determine in each particular case whether the pleadings and proofs, taken in their entirety, warrant the court in creating and enforcing such a lien.

5. Such a lien may be implied in equity to belong to a vendor for the unpaid purchase price, even though such vendor, after having executed a contract of sale to the vendee, continues to remain in possession of the land so sold--such a lien being wholly independent of possession--but such a vendor is not entitled to treat the estate as his own. If he willfully damages or injures it, he is liable to the purchaser; and more than that, he is liable if he does not take reasonable care of it.

6. It is also the duty of the vendor remaining in possession of lands after having executed a contract of sale embracing them to the vendee, in addition to taking reasonable care of said lands, to pay all taxes which may be legally imposed thereon from time to time, unless the vendee has agreed to pay the same.

7. Since the adoption of the Revised Statutes of 1892, under section 1917 thereof, real estate descends to the heirs, and an administrator has no right to the possession until an order of court has been made, authorizing him to take possession thereof.

8. Where the bill of complaint discloses that the vendor remained in possession of lands after having executed a contract of sale embracing them, and had not taken reasonable care thereof, but had neglected and failed so to do--having permitted the fencing and all other improvements thereon to virtually go to decay, and the estate to depreciate in value every year--and had omitted to pay the taxes legally imposed thereon, and where the only relief prayed in such bill is for a decree against the administrator of the decedent, to whom the vendor had executed a contract for the sale of the lands, for the amount which might be found to be due upon said contract, for the appointment of a receiver, and for general relief, it must be held that a court of equity is warranted in refusing to create and enforce a vendor's lien at the instance of complainant.

9. He who comes into a court of equity must come with clean hands, and where the allegations of the bill, taken in their entirety, show that the complainant has been guilty of laches, as in the bill in this case, it was well open to attack by a general demurrer, and the same should have been sustained.

10. Upon such a showing by complainant of his own negligence and omission, it was also error to appoint a receiver.

11. The rule of procedure in giving deficiency decrees does not belong to a court of equity, unless specifically conferred by statute or a rule of court. Equity rule 89 provides for the entry of a deficiency decree only in suit for the foreclosure of mortgages; hence it was error to enter a deficiency decree in this case.

COUNSEL

Jno. H. Carter and W. O. Butler, for appellants.

D. L. McKinnon, for appellee.

The appellee, A. D. McKinnon, filed his bill in equity in the circuit court of Jackson county on the 3d day of November 1896, against Seth Johnson, Seth Johnson as administrator of the estate of P. P. Johnson, deceased, Caroline A. Johnson, H. L. Johnson, Emma A. Coleman, Mary Brockway, Nancy Hysham, Orsa A. Johnson, Dave Johnson, Daniel Johnson, and S. P. Johnson, who are the appellants in this court, alleging in substance therein as follows: That on the 27th day of February, 1893, the appellee and P. P. Johnson entered into an agreement in writing whereby the consideration of $2,000 was promised to be paid by the said Johnson, $400 of which was paid in cash, $1,000 was to be paid at Montgomery, Ala., between October 1 and November 15, 1893, in horses (on the same basis of prices as sold to L. H. Cawthon the previous year, and, if appellee and said Johnson could not agree upon prices, then the said Cawthon was to be the final arbitrator as to prices), and the balance of $600 was to be paid in money the 1st day of January, 1894, whereupon appellee was to make and execute to said Johnson a warranty deed to certain lands therein described, and which were situated in the said county of Jackson; a copy of said agreement being attached to said bill as an exhibit. That shortly after the making of said agreement, and after the making of the cash payment of $400, and before either of the other payments became due, the said Johnson died in Alabama, and Seth Johnson took out letters of administration upon the estate of the said P. P. Johnson in Alabama, and qualified also as such administrator in Florida, and entered upon the discharge of his duties as such. That all the appellants, except Caroline A. Johnson, who was the widow, were the children and heirs at law of the said P. P. Johnson, and were the only heirs entitled to a distribution of the said estate. That said administrator frequently after his appointment promised to perform and carry out said agreement, but had wholly failed to do so, although appellee had always held himself out as being ready and willing to perform, and had offered to perform, his part of said agreement. That he, in company with the said Cawthon, had gone to Montgomery, Ala., between October 1 and November 15, 1893, as the said agreement required, to receive from said administrator the horses that were to be delivered there, and had been put to considerable expense in making said trip, but said administrator did not have the horses there to deliver, which greatly injured and damaged appellee, as he had arranged to dispose of the horses to advantage, and had so informed said administrator. That neither the said P. P. Johnson in his lifetime, nor his said administrator since his death, has tendered to appellee said $1,000 worth of horses, or any portion of them, or paid or tendered payment of either of the two last mentioned payments in said agreement, though appellee had at all times since the making of same stood ready and willing, and had offered, to comply with his part of the same, and that he thereby tendered to the heirs of said Johnson a good and sufficient warranty deed to said described lands. That, since the sale of said lands, appellee had paid the taxes thereon to prevent them from being sold therefor. That the said Seth Johnson had paid no attention to said plantation since it had come under his charge. That the fencing and all other improvements on said lands had virtually gone to decay. That the place was not worth near as much as when sold to said P. P. Johnson, and was yearly growing less valuable. That there was no other property in the state of Florida, of which appellee was aware, that would be subject to his claim. That appellee believed, if the plantation was looked after by some one, some rent could be collected, sufficient at least to pay the taxes, but that the said Seth Johnson would not look after it, and no one else was authorized to do so, and that appellee believed it was to the interest of all parties for the court to appoint a receiver to take charge of the place pending the suit, and rent the same and pay the taxes thereon. Said bill contained a prayer that the court would order and decree that appellee have and recover from said Seth Johnson, as administrator as aforesaid, the balance due upon said agreement, in money, with interest thereon from the date it should have been paid, together with all taxes which appellee had paid upon said lands since the sale thereof, which appellee claimed to be a lien on said lands; that a receiver be appointed to take charge of said lands pending the litigation, to look after repairs, rent the lands, and pay the taxes thereon; and said bill concluded with the general prayer for relief. To said bill was appended the affidavit of appellee to the effect that the matters stated in said bill were true, of his own knowledge, except as to those stated upon information and belief, and those he believed to be true.

On the 12th of December, 1896, the chancellor below made an order in said case, upon the...