Knabb v. Duner
| Decision Date | 21 May 1940 |
| Citation | 196 So. 456,143 Fla. 92 |
| Court | Florida Supreme Court |
| Parties | KNABB v. DUNER et al. |
Suit by Lucius Knabb, otherwise known as L. Knabb, against Joseph A Duner and others to set aside deed and for other relief. From orders dismissing the complaint and refusing to allow amendment, plaintiff appeals.
Affirmed. Appeal from Circuit Court, Baker County; H. L Sebring, Judge.
H. L Anderson, of Jacksonville, for appellant.
William H. Frecker and Mabry, Reaves, Carlton & White, all of Tampa, for appellees.
On December 16, 1929, Giddings E. Mabry and O. K. Reaves, partners doing business as Mabry, Reaves & Carlton, filed a suit in Chancery in the Circuit Court of Baker County against Chicago Trust Company, a corporation, in which it was alleged that such corporation had been the owner and holder as Trustee of a mortgage on certain therein described lands in Baker County, Florida, had employed complainants to foreclose such mortgage, and that the mortgage was foreclosed. The property was bought in by the holder of the mortgage for the benefit of the trust and that under the deed of conveyance Chicago Trust Company became the holder of the title to the property in trust for certain cestui ques named.
It was alleged that attorneys' fees incident to the foreclosure suit had not been paid and the purpose of the bill was to impress the lien upon the involved real estate to the extent of the amount due complainants for their fees with interest thereon earned in connection with the foreclosure suit.
The bill was amended on December 23, 1936, making successor trustees, to-wit Central Republic Trust Company, Charles H. Albers as receiver of Central Republic Trust Company, defendants.
On the 28th day of October, 1936, L. Knabb filed in the court in that cause a petition to be joined as a party defendant and by order of court entered on October 27, 1936, he was joined as defendant. In his motion to be joined as defendant, he alleged:
'That the said defendant was prior to filing of plaintiff's amended bill of complaint and to the order and publication of notice of service upon the defendants, the bona fide purchaser for value of all the right, title and interest of the defendants in the property described in the plaintiffs' bill of complaint; that the said L. Knabb is now and has been for sometime prior to said service by publication been the real party in interest and is a neccessary and proper party defendant as to come within the meaning and purview of section 4918 (1) of the Compiled General Laws [Supplement] of the State of Florida'.
He move to dismiss the bill of complaint, which motion was denied. Knabb the filed answer in which he alleged:
'This defendant would show that he is a bona fide purchaser for value of the title, both real and equitable of the defendants, Chicago Trust Company, a corporation, as trustee under the will of Walter C. Flanders, Central Republic Trust Company, a corporation, successor by consolidation to Chicago Trust Company, in the property described in the plaintiffs' Bill of Complaint; that at the time of the making of said purchase of the interest of the defendant as aforesaid this defendant had no notice either actual or constructive of any claim of the plaintiff against said property then existing or that may be enforceable against said property.'
He then set up facts showing how his alleged interest accrued and alleged, in effect, that the claim of the complainants was without legal foundation.
Answer was filed by Chicago Trust Company, Central Republic Trust Company and Albers. Thereafter, on the 30th day of April, 1937, the complainants amended their amended bill of complaint in which it was alleged:
'Your complainants would further show that the said L. Knabb has not paid said moneys according to the said agreements, but there is now due and owing large sums, the exact amount of which your complainants are not advised, and that your complainants have a prior claim on the lands and the proceeds thereof superior to the rights of all the defendants herein, and that they are entitled to have an accounting on the part of L. Knabb for the moneys due and owing by virtue of said lease and supplement thereto; that subsequent to the filing of the last amended bill of complaint in said cause, the said L. Knabb has intervened by permission of this court as a defendant and has thus been made a party to said cause as a defendant.', and prayed for an accounting from Knabb.
Motion to dismiss amendment was filed and denied.
Thereafter, Knabb filed his answer to the amended bill as amended by the amendment in which he alleged:
'This defendant would show that he is a bona fide purchaser for value of the title, both real and equitable of the defendants, Chicago Trust Company, a corporation, as trustee under the will of Walter C. Flanders, Central Republic Trust Company, a corporation, successor by consolidation to Chicago Trust Company in the property described in the plaintiffs' Bill of Complaint; that at the time of the making of said purchase of the interest of the defendant as aforesaid this defendant had not notice either actual or constructive of any claim of the plaintiff against said property then existing or that may be enforcible against said property.'
He then set out alleged contract under which he claimed to have an interest in the lands and the transactions subsequent thereto. He plead the statute of limitations and the statute of frauds as against the complaining claimants.
Master was appointed and testimony was taken. The matter was submitted to the court. On the final hearing final decree was entered wherein, amongst other things, it was decreed:
'The court further finds, and it is so ordered, that defendant L. Knabb is not a purchaser of said property as alleged in his answer and has no interest in same, except as appears by the lease and supplement hereto, no adjudication being made herein of claims arising by payment of taxes or acquisition of tax certificates.'
From the final decree Knabb took appeal. The case was presented here and on May 5, 1939, this Court filed and entered its opinion and judgment in all respects affirming the decree of the Circuit Court. See Knabb et al. v. Mabry et al., 137 Fla. 530, 188 So. 586.
On August 8, 1938, Knabb filed his bill of complaint in the Circuit Court of Baker County, Florida, in which he sought to set aside the deed from Central Republic Bank & Trust Company, otherwise known as Central Republic Trust Company, as trustee to Joseph A. Duner as successor trustee, and in which he claimed a contract with Central Republic Trust Company under which he was entitled to purchase the lands involved and alleged that he had made certain payments under that contract and gone into possession of the lands. He prayed relief as follows:
'1. That Central Republic Bank & Trust Company, or its officers and/or Receivers, be decreed to hold title to all the lands described in the Schedule attached to and made a part of plaintiff's bill of complaint, freed and relieved of all encumbrances and unpaid taxes levied for each year 1930 to 1937 inclusive, with interest and penalties, together with an allowance to plaintiff of his attorneys and solicitors fees paid, or incurred by plaintiff in and about enforcing the lien of plaintiff therefor, in such sum as the court may deem reasonable and just, and that said defendant be required to execute and deliver to plaintiff, its contract in writing to evidence plaintiff's purchase of said lands in conformity with the terms and conditions agreed upon for the purchase and sale of said lands.
'2. That the court may determine the total sum of moneys owing to plaintiff for taxes paid by him, and on account of tax certificates purchased and held by plaintiff together with costs and attorneys' fees.
'3. That the court will decree that the deed running to defendant Duner is wholly void, as against plaintiff and that the said deed be cancelled by the decree in this cause, and the clerk of this court be required to write across the face of the record of said deed, the words 'Canceled by decree of Court', and that defendant Joseph A. Duner, his agents, servants and attorneys be restrained and enjoined from selling, or offering for sale, or in anywise encumbering the title to any of said lands, pending plaintiff's suit, and by the Final Decree herein, defendant Duner, and any person by his authority, be so perpetually enjoined and restrained.
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