Johnston v. Thomas

• Decision Date: 19 January 1927
• Parties: JOHNSTON et al. v. THOMAS et al.
• Court: Florida Supreme Court

111 So. 541

93 Fla. 67

JOHNSTON et al. v. THOMAS et al.

Florida Supreme Court, Division A.

January 19, 1927

Suit by Elizabeth Johnston and others against Robert E. Thomas and others, later dismissed as to defendants except Robert E Thomas and P. E. Braddock, against whom a decree for accounting only was sought. From the decree, complainants appeal.

Reversed and remanded, with instructions.

(Syllabus by the Court.)

Appeal from Circuit Court, Polk County; John S Edwards, judge.

COUNSEL

R. B Huffaker and Lennard O. Boynton, both of Bartow, for appellants.

L. C. Johnson, of Bartow, for appellees.

The complainants Elizabeth Johnston, widow of John Johnston, George W. Johnston, son of the deceased, and John Logan, as administrator of the estate of John Johnston, filed their bill in the court below against Robert E. Thomas and wife, E. K. Anderson and wife, and Louise Degavre and husband, and P. E. Braddock, praying the cancellation of a certain deed from John Johnston and wife to Robert E. Thomas conveying certain property in Auburndale, Fla., and a deed from Robert E. Thomas and wife to E. K. Anderson, conveying the same property, and notes and mortgage from Anderson and wife to Thomas, and an assignment of said notes and mortgage to Louise Degavre; also for an accounting of the rents and profits on the property conveyed, on which there was a bearing orange grove; and, in the event complainants should not be found entitled to cancellation of the said deeds, notes, and mortgages, that the court render a decree of accounting against the defendants Robert E. Thomas and P. E. Braddock for the sale price of said grove, the sum of $12,000, and for general relief. After the filing of the bill, complainants, being the appellants here, abandoned the demand for cancellation of the deeds and mortgage, and procured a dismissal of the bill as to the defendants Anderson and wife and Louise Degavre and husband, and thereafter sought to obtain a decree of accounting only as against the defendants Robert E. Thomas and P. E. Braddock, for the value of the assets of the estate of John Johnston, deceased, that came into their hands immediately before and after the death of the said John Johnston.

The bill alleged: That the said John Johnston died at Coronet, Fla., on March 24, 1920, leaving surviving as his only heirs at law said Elizabeth Johnston, his widow, and George W. Johnston, his son, and that John Logan was appointed ex officio administrator of the estate of the deceased by the county judge of Polk county on June 27, 1921, and that, since such appointment, the widow had filed in the office of the county judge her election to take a child's part in said estate. That shortly prior to his death the deceased was seized and possessed of a certain orange grove in Auburndale of the value of $12,000, and certain personal property consisting of cash on deposit in the Latin-American Bank of Tampa and the State Bank of Auburndale, approximately $1,500, two shares of the capital stock of said State Bank of Auburndale, of the value of $300, and certain Liberty bonds of the value of $1,000, and other personal property and effects of unknown description and value, but through the fraud, chicanery, imposition, undue influence, and other inequitable conduct of the said Robert E. Thomas and P. E. Braddock, practiced toward and upon the said Johnston during his last illness, the said Johnston was, shortly before his death, wrongfully deprived of the ownership and possession of all of his said property.

That the defendant Robert E. Thomas obtained from the deceased what purported to be a warranty deed from said John Johnston and Elizabeth Johnston, conveying said grove property, dated August 13, 1919, and purporting to have been acknowledged by Elizabeth Johnston on September 11, 1919, and by John Johnston on February 13, 1920, but alleging on information and belief that said deed was not signed by John Johnston until March 23, 1920, the day before his death, and was filed for record the same day. That this deed was without consideration, and that the defendant Robert E. Thomas, joined by his wife, attempted by warranty deed to convey said property to E. K. Anderson for a consideration of $12,000, of which $7,000 had been paid in cash and the balance secured by five notes of $1,000 each, payable annually, and secured by first mortgage, which notes and mortgage the defendant Robert E. Thomas has subsequently assigned to Louise Degavre.

The bill further alleges: That, for several years preceding the death of said John Johnston, he and the defendant Thomas had been thrown together a great deal, were both members of the same secret order, and that said Thomas had insinuated himself into the fullest confidence of the deceased and obtained a complete mastery over his mind and affections. That said Thomas was a shrewd real estate dealer, and that the deceased had given him the exclusive right as a real estate agent to sell said grove, and that Thomas had negotiated a sale of the grove for Johnston and the purchase by Johnston of a tract of land at Terra Ceia, Fla. That on or about January 1, 1920, Johnston became ill and left Auburndale and went to the home of his friend John Henderson at Coronet, Fla., and remained there until he died on March 24, 1920. That the defendant Thomas made frequent trips from Auburndale to Coronet, a distance of 25 miles, to visit Johnston during his illness, Braddock accompanying him on two occasions, having frequent secret conferences with the deceased, and secured from him during his last days the aforementioned deed to the grove property, and the possession of all of his personal property, including checks and orders signed in blank on all of Johnston's funds in banks, as well as for the Liberty bonds, and the signature of the deceased to an assignment of his stock certificate in the State Bank of Auburndale, which certificate Braddock caused to be canceled and reissued to himself without consideration.

That, after the death of the said John Johnston, the defendant Thomas pretended that the deceased had left all of his property in Thomas' care, and that, after reimbursing and repaying himself a large loan he fraudulently pretended had been made by him to said Johnston and settling all debts against the estate, he was to pay and distribute the balance of the estate, which he claimed was about $1,700 to the relatives and certain friends of said Johnston. That said Thomas pretended to administer on the estate of said Johnston, but this he did as an administrator de son tort. That Thomas had refused to make any accounting except a false and fraudulent one, and that Thomas and Braddock had conspired to defraud the estate and the complainants by corruptly appropriating to their use the whole of the estate, except such small portion thereof as was used to pay the cost and expenses of the last illness and burial of the deceased.

The defendant Robert E. Thomas, by separate answer, alleged: That he had known the deceased for a great many years, and had enjoyed a close and intimate acquaintance and friendship with him up to the time of his death. That for many years he had lived alone and was never visited by either of the complainants, his wife, Elizabeth Johnston, living in Scotland, or his son, George, residing in California. That during the later years of his life the deceased had accumulated certain property described in the bill, and that the defendant became the owner of the real estate by purchase from Johnston, his title dating from the delivery of a warranty deed duly signed and acknowledged by both the said John Johnston and his wife; the same being executed and acknowledged by John Johnston on February 13, 1920, in the State Bank of Auburndale, before said P. E. Braddock as a notary public and two witnesses. That said Johnston, during the year 1919, had bargained with the defendant Thomas for the sale of said grove property, and referred the abstract to Wilson & Swearingen, attorneys, for examination, who reported the necessity of a suit to quiet title. That Johnston employed said firm to file such suit so as to be able to deliver a marketable title to the defendant. That the defendant did not, a day or two before the death of said Johnston, wrongfully deprive the said Johnston of his property but that the deed was signed and delivered on February 13, 1920, for a valuable consideration, the sum of $10,000. That the defendant had never sought to defraud or deceive the deceased or to secure his property, but had always befriended him and helped him financially many times. That, while the deceased was at the home of John Henderson at Coronet, the defendant visited him on several occasions. That during none of these visits did the mind of said Johnston appear to be clouded or feeble, and he believed that his illness was not serious and that he would get well. That Johnston was a very taciturn man, and would never converse about his personal affairs with the defendant when other people were present. The defendant was never accompanied on any of his visits by Braddock, but was accompanied by his brother and one or two other persons at different times.

That during 1917 and 1918 the defendant and Johnston were engaged together in prospecting certain lands for phosphate, upon an agreement to share the expenses thereof equally, and to have an equal interest in any phosphate bearing lands which were acquired by them. That, although they found no lands bearing phosphate in commercial quantities, the expenses of such operation were paid by the defendant Thomas, and that Johnston had given him a note, bearing date April 8, 1918, in the sum of $6,500, for his half of such expenses. That Johnston paid interest on this note...