Lente v. Clarke

• Decision Date: 08 September 1886
• Citation: 1 So. 149,22 Fla. 515
• Parties: LENTE v. CLARKE, Adm'x.
• Court: Florida Supreme Court

1 So. 149

22 Fla. 515

LENTE v. CLARKE, Adm'x.

Florida Supreme Court

September 8, 1886

Appeal from circuit court, Hernando county.

Appellant filed his bill against the appellee in the circuit court for Hernando county, in chancery, August 22, 1885. Subpoena issued same day, returnable September 7, 1885, and was returned by the sheriff as having been served on August 25 1885. On September 7th a decree pro confesso was entered against the defendant, in the clerk's office, for want of appearance. On September 24th, defendant, appearing specially, entered a motion to set aside the service of subpoena, and to vacate the decree pro confesso. On October 8th the circuit judge, upon hearing said motion, made the following order: 'Complainant allowed to amend writ. Defendant allowed until ruleday, in December next, to plead demur, or answer.' On November 7th the defendant demurred to the bill, and on December 11th complainant filed his joinder in demurrer. On January 13, 1886, the circuit judge made the following order upon the said motion to set aside service of subpoena, and to vacate decree pro confesso 'Motion to set aside service of writ, and to vacate decree pro confesso, granted.' On January 29, 1886 'by consent of counsel,' the demurrer was heard, and said demurrer was thereupon sustained. The other facts of the case are sufficiently stated in the opinion.

Syllabus by the Court

SYLLABUS

Where a defendant, after appearing specially and obtaining an order setting aside the service of an original process, submits the cause for decision on a demurrer to the bill, such submission constitutes a voluntary appearance, and gives the court jurisdiction of the person.

A decree pro confesso cannot be entered, under the rules of chancery practice in this state, for the want of an appearance of the defendant, but only for a failure to file a demurrer, plea, or answer.

A decree pro confesso cannot be entered on the rule-day to which a subpoena that has been personally served is returnable, and on which the appearance is due, nor until the next succeeding rule-day.

No bill of exceptions, nor formal nothing of exceptions to the orders appealed from, held to be necessary to enable the appellant to obtain a review of them on appeal. An entry in the lower court of an appeal from such orders, and a due prosecution thereof, is sufficient.

Neither a seal nor subscribing witness is necessary to the validity of an agreement or contract for the sale of land, or the note or memorandum thereof, under the statute of frauds.

An agreement for the sale of land, under the statute of frauds, will be held sufficient, as to its description of the land to be conveyed, if it so describes a particular piece or tract of land that it can be identified, located, or found. A detailed description is not necessary, where the description shows that a particular tract is within the minds of the contracting parties, and intended to be conveyed. Parol evidence may be resorted to, to apply the description or identify the tract, though such description be somewhat general.

The following agreement: 'I agree to make good titles in fee to my forty near the Garrison lands, in Hernando county, to Wm. K. Lente. Consideration $75; received. THOMAS W. CLARKE. Witness: M. P. O'NEAL:' held to contain a sufficient description.

The expression 'forty,' as commonly used in this state in describing lands, defined.

Where, upon the face of the agreement to convey, the description of the land is sufficient, but the fact may be that the defendant or party to convey has more than one tract answering the description, and thus the description may be rendered indefinite and insufficient, it is not necessary for the plaintiff to allege, in the bill for specific performance, that the defendant has only one tract answering the description, but the burden is upon the defendant to set up in his answer and prove his ownership of two such tracts.

COUNSEL

Benjamin M. Miller, for appellant.

A. Paterson, for appellee.

OPINION

RANEY J.

1. It will be observed that the return of the sheriff, as it appears in the record, conforms to the amendments directed by the judge, as indicated by the bill of exceptions, and consequently the only conclusion to be drawn, if we are to consider the bill of exceptions, is that the sheriff amended the return, as it originally stood, so as to make it comply with the ruling of the judge. Such a bill of exceptions is neither a necessary nor a proper chancery proceeding. Ignoring the so-called bill of exceptions, we must conclude either that the return, as it now appears upon the copy of the writ, is as it was originally made by the sheriff, or that it was amended under the order of October 8th, allowing an amendment of the writ.

It is, however, unnecessary to say anything about the sufficiency of the service as indicated by the return, because after the order of January 13th, considered in so far as it sets aside the service, was made, there was a voluntary appearance by defendant in the argument, and submission of the demurrer by her counsel. Had no order as to the service been made but that of October 8th, which practically denied defendant's motion, we do not mean to say that defendant, had she excepted to such order, would have waived her right to appeal from it by defending by demurrer or answer. Harkness v. Hyde, 98 U.S. 476. After obtaining an order setting aside the service, she has voluntarily appeared, and thus she cured all defects of service, and gave the court jurisdiction of her person. Keil v. West, 21 Fla. 508; and vide Standley v. Arnow, 13 Fla. 361; Pearce v. Thackeray, Id. 574.

The rules of practice in chancery causes in this state authorizes a decree pro confesso only for want of a demurrer, plea, or answer, and not for want of an appearance. Equity rule 44. The appearance was due, assuming that the service of the writ was legal, on the rule-day in September, but the defendant had, under the above rule, till the rule-day in October to file such pleading as her counsel might deem proper. With the remark that no formal exception by the plaintiff to any of the orders appealed from in this cause was necessary, but that in chancery an appeal from such orders duly entered isordinarily a sufficient exception, we will pass to the consideration of the order sustaining the demurrer.

2. The memorandum or agreement in this case is as follows:

'DECEMBER 18, 1883.

'I agree to make good title in fee to my forty near the Garrison lands, in Hernando county, to Wm. K. Lente. Consideration, $75; received.

THOMAS W. CLARKE.

'Witness: M. P. O'NEAL.'

It is objected by counsel for appellee that this writing is not under seal, and has not two subscribing witnesses, and that hence no title passes by it. He refers to section 1, p. 214, of McClellan's Digest. This section relates to present conveyances of the title of certain interests or estates in land, and not to agreements or contracts to convey the same in the future. The latter are regulated by section 1, p. 208, of the Digest, which provides that 'no action shall be brought * * * whereby to charge any person * * * upon any contract for the sale of lands, tenements, or hereditaments, or of any uncertain interest in or concerning them, * * * unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto lawfully authorized.' Neither a seal nor witnesses to such contract or agreement for the sale of lands, or memorandum thereof, is required. The above sections are parts of the same statute. By a subsequent act, executors and administrators are authorized to execute conveyances of real estate, where written agreements or contracts therefor have beem made by their testators or intestates. Section 57, p. 93.

It is further contended that the description of the land to be conveyed is not sufficient, and the case of Patrick v. Sears, 19 Fla. 856, is relied upon. There the agreement, dated January 13, 1882, and signed by Patrick, was as follows: 'I have agreed to sell W. J. Sears five acres of land, near Kissimmee City, in Orange county, Florida, for one hundred dollars, to be selected by his agent.' Sears appointed an agent, who selected the land, and notified Patrick that he had done so, describing the land selected, and as such agent he tendered the $100 and demanded a deed. This was held not to be such an agreement as could be enforced in equity, because the land is not identified in it, nor did either party contemplate any particular five acres. It is clear that the agreement identified no particular piece of land, and also that subsequent action was necessary to attach or apply the contract to any particular piece, and hence there was no description whatever of any particular tract in the paper, and in the nature of things there could be none.

The rule is that the contract or memorandum must identify or point out a special tract of land as within the minds of the parties, and intended to be conveyed. It must so describe the land that it can be found or located, or, in other words there must be such a description as can be applied to a particular piece of land as the subject of the contract. A detailed description is not necessary. Where the description shows that a particular tract, as distinguished from other lands, is meant, then parol evidence can be resorted to, to apply the description or identify or locate the land, though the description be somewhat general. However precise the description, a resort to parol evidence for such purpose is always necessary to apply it, or ascertain the land described. This is not adding anything to...