Koon v. Koon

• Decision Date: 14 May 1908
• Citation: 55 Fla. 834,46 So. 633
• Parties: KOON et al. v. KOON.
• Court: Florida Supreme Court

46 So. 633

55 Fla. 834

KOON et al. v. KOON.

Florida Supreme Court, Division A.

May 14, 1908

Appeal from Circuit Court, Columbia County; Bascon H. Palmer, Judge.

Bill by Luther M. Koon and others against Wiley H. Koon. Demurrer to cross-bill of defendant overruled, and complainants appeal. Reversed.

Syllabus by the Court

SYLLABUS

As a general rule, co-tenants cannot enforce a partition of a part only of the common lands, leaving the rest undivided; but the entire property should be included in the proceedings for partition.

A partition suit is not the proper proceeding in which to settle a disputed title, though, whenever the case is properly one of partition, one whose bona fide object is the partition of lands between common owners thereof, one or more of whom are complainants and the others are defendants, and they or some of them are in possession, then all controversies between them as to the legal title and right of possession as to the lands of which partition is sought may and should be settled, as authorized by the statute; but other questions and issues, especially when they relate to other lands, should not be injected in such partition proceedings.

As a general rule, a cross-bill in a partition suit is neither necessary nor proper.

COUNSEL A. J. Henry, for appellants.

Boozer & Wilson, for appellee.

OPINION

SHACKLEFORD C.J.

The appellants filed their bill in chancery against the appellee in the circuit court for Columbia county for the partition of certain described lands, of which the appellants and the appellee were alleged to be seised and possessed as tenants in common; their title thereto being derived through their common ancestor, Absolom Koon. It was further alleged in the bill that the lands described therein 'are the only real estate owned as tenants in common or other tenure by the parties to this suit.' The bill also contains allegations to the effect that the defendant, who is the appellee here became possessed of the sum of $300, which was derived from the sale of certain timber on the lands in question, which sale was made by Livinia A. Koon, the widow of Absolom Koon, deceased, to whom said lands had been allotted and set apart as her dower interest in the real estate of her deceased husband, which described lands however, also included the share or interest of George Koon one of the sons of Absolom Koon, deceased; that George Koon had died unmarried and without issue; that Livinia A. Koon continued to occupy and cultivate all of such lands during her lifetime, including the share belonging to George Koon that after selling the timber from said lands for the sum of $300, in some manner unknown to the complainants the defendant became possessed of such proceeds. The prayers of the bill are for a partition of the lands, for an accounting by the defendant of such proceeds from the sale of timber, and for general relief.

The defendant interposed a demurrer to the bill, which was overruled; but, as the same is not set forth in the transcript, we are not advised what the grounds thereof were. No appeal is taken from this ruling.

The defendant answered that bill, in which he admitted that the lands described therein were of the lands belonging to the estate of Ansolom Koon, the common ancestor of the complainants and the defendant, but averred that certain of the complainants, who are designated, had no interest in such lands by reason of the fact that they had sold and conveyed all of their right, title, and interest in and to the same to the defendant by their deeds duly executed. The answer denies that the lands described in the bill 'are the only real estate owned as tenants in common, or other tenure, by the parties to this suit,' and avers that certain other lands, which are described, were owned by James H. Koon, one of the sons of Absolom Koon, deceased, who died seised and possessed thereof; that Luther M. Koon, one of the complainants, was appointed administrator of the estate of James H. Koon, deceased; that W. H. English recovered a judgment against such administrator, upon which execution issued and was levied upon said lands; that Livinia A. Koon, the widow of Absolom Koon, deceased, gave to Luther M. Koon the sum of $300 for the purpose of purchasing said lands at the sheriff's sale under such execution and taking the deed thereto in her name; that Luther M. Koon, instead of having such deed made to Livinia A. Koon, in accordance with her instructions and the purpose for which she intrusted to him the said sum of $300, had such deed thereto made and executed to his wife, Martha Koon, on the 6th day of January, 1896, but never placed the same of record until the 14th day of August, 1906, after the death of Livinia A. Koon, which occurred on the 7th day of March, 1906; that Luther M. Koon and Martha Koon, his wife, 'made no claim of possession or ownership to said lands, or the rents and profits therefrom, during the lifetime of the said Livinia A. Koon, but always acknowledged and proclaimed the title and possession of the same to be in Livinia A. Koon up to the time of her death, and that Livinia A. Koon held the open, notorious, and continued possession of the said lands from January 6, 1896, to March 7, 1906.' The answer contains a further averment 'that this defendant is advised that the parties to this suit are the heirs and distributees of the estate of the said Livinia A. Koon, deceased, and that the lands above described are the lands of the estate of the said Livinia A. Koon, and are properly subject to partition in this suit.' The answer disclaims 'any knowledge or reliable information' upon the part of the defendant of the alleged sale by Livinia A. Koon of timber from the lands to the amount of $300, and calls for strict proof of the same; the defendant denying that he had ever received such sum, or any part thereof.

The defendant also filed a cross-bill, whether by leave of the court or not does not appear, in which he repeats the averments in his answer, which we have set forth in substance above, and prays that the sheriff's deed to Martha Koon, who is made a party defendant to the cross-bill, be set aside and canceled, and that the lands described therein be partitioned between the complainants in the original bill and the defendant, that Luther M. Koon be decreed to account for certain moneys alleged therein to have been received by him from the sale of certain timber form the lands described in the original bill, for counsel fees, and for general relief.

To this cross-bill all of the defendants thereto, except Martha Koon, interposed the following demurrer:

'The demurrer of Luther M. Koon, Fannie Graham, T. S. Graham, J. W. Stevenson, Cottie Stevenson, Florence Pournell, E. P. Pournell, Vivian McKinney, Lehman McKinney, Vasco McKinney, John A. Anders, Mattie Anders, W. G. Shealy, Norman Shealy, Maggie Osteen, W. S. Osteen, Jr., Melissa Williams to the cross-bill filed by Wiley H. Koon in the above-entitled cause; and for cause of demurrer and points of law to be argued say:

'First. That the said cross-bill does not state a case as entitled the said complainant to the relief therein sought.

'Second. That said cross-bill does not pray for relief, and is not designed to afford the cross-complainant any affirmative relief with regard to the subject-matter of the original bill.

'Third. The relief sought by the said crossbill is not germane to the relief prayed for in the original bill.

'Fourth. The cross-bill shows that the...