Lucas v. Wade

• Citation: 31 So. 231,43 Fla. 419
• Parties: LUCAS v. WADE et al.
• Decision Date: 13 November 1901
• Court: United States State Supreme Court of Florida

31 So. 231

43 Fla. 419

LUCAS v. WADE et al.

Florida Supreme Court

November 13, 1901

Appeal from circuit court, Duval county; Rhydon M. Call, Judge.

Bill by Rosanna S. Lucas against Leonidas E. Wade and others. Decree for defendants. Complainant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. Where a husband is the real purchaser of land, the title to which at his instance is conveyed to his wife for his benefit, the vendor will have a lien on the land for unpaid purchase money evidenced by notes signed by husband and wife.

2. The waiver of the lien which arises in equity in favor of a vendor of real estate for unpaid purchase money is defensive matter, and it devolves upon a defendant insisting on such defense to allege and prove it. Where, however, minors are interested defendants, the court will, in obedience to the rule entitling them to special protection in a court of equity, entertain such a defense in their behalf without its being specially pleaded.

3. The conclusion of a chancellor on testimony taken without an opportunity on his part to see and hear the witnesses, while entitled to due weight, is not so conclusive as the verdict of a jury, or where he has an opportunity to hear the witnesses.

4. The testimony examined in this case, and held not to be sufficient to authorize the conclusion that there was a waiver of a vendor's lien shown to exist.

5. A set-off must be pleaded and exist in favor of defendant in the same right in which he is sued.

COUNSEL

J. M. Barrs and H. B. Philips, for appellant.

A. W Cockrell & Son, for appellees. The bill of complaint of Rosanna S. Lucas, filed in the circuit court for Duval county against Leonidas E. Wade, F. Tuly Wade (his wife), Leonidas E. Wade, Jr., Mary I. Wade (the last two being infants), and Leonidas E. Wade (trustee for said infants), alleged that on the 7th day of August, 1890, the defendant L. E. Wade agreed to purchase from her, at the price of $2,000, the N. 1/2 of lot 3 in block 101 in the city of Jacksonville, Duval county, Fla., as designated upon the I. D. Hart map of said city, which she then owned, and that in pursuance of said agreement, and at the request and instruction of L. E. Wade, said complainant on said date conveyed by deed said premises to defendant F. Tuly Wade that shortly thereafter L. E. Wade paid all of said purchase price, except $890.75, which was evidenced by two promissory notes bearing date September 1, 1890 (one for $250, and the other for $640.75), payable one day after date and executed by defendant Leonidas E. Wade, and apparently by his wife, F. Tuly Wade; that, to induce complainant to retain said notes, defendants L. E. Wade and F. Tuly Wade agreed with her that the payment of said notes should be secured by a vendor's lien on said premises, and she retained the same under such agreement and understanding; that said Leonidas E. Wade and wife in July, 1894, conveyed said property, together with all other property he owned, to W. P. Ward, who, with his wife, conveyed to the same to Leonidas E. Wade, trustee for his minor children, Leonidas E. and Mary I.,--said deeds being of record in Duval county, and the one from Ward to Wade, trustee, contains the stipulation that the property was conveyed in trust for said children, 'with full power to sell, grant, bargain, transfer, and convey, to mortgage, redeem, and remortgage as often as he may see fit, and to lease and re-lease.' It is alleged that no consideration was given for the two deeds, and the transaction was a device of L. E. Wade to hinder and prevent complainant from enforcing payment of her said purchase-money notes, payment of which had many times been requested of defendants, but they had failed and refused to pay any part of same. The special prayer is that complainant be decreed to have a lien upon said property for what may be found to be due her on said notes, together with costs of suit, and that Leonidas E. Wade and F. Tuly Wade be decreed to pay the same within a time to be fixed by the court, and in default thereof that said land be sold, and the proceeds applied to such payment.

A decree pro confesso was entered against F. Tuly Wade, and L. E. Wade, individually and as trustee for the minor children, filed a demurrer, which was overruled. He then individually and as trustee answered, and therein stated that it was not true, as alleged, that on the 7th of August 1890, complainant owned the N. 1/2 of the lot described in her bill; that it was not true, as alleged, that on the 7th day of August, 1890, defendant Leonidas E. Wade agreed to purchase said property from complainant, or that he agreed to pay her for said property the sum of $2,000, or any other sum of money; that it was not true, as alleged, that in pursuance of an agreement with defendant Leonidas E. Wade, and at his request and instruction, complainant conveyed said premises to his wife, F. Tuly Wade, on August 7, 1890. It is admitted that complainant executed two deeds to F. Tuly Wade, wife of L. E. Wade, on August 7, 1890, but it is denied that either was executed in pursuance of the agreement set forth in complainant's bill. It is admitted that on the 1st of September, 1890, defendant L. E. Wade executed and delivered to complainant two promissory notes for $250 and $640.75, respectively, due one day after date, and apparently executed by F. Tuly Wade; but it is alleged not to be true that the sum of money evidenced by said notes, or any part thereof, was for purchase money of said property, or that defendants Leonidas E. Wade and F. Tuly Wade, or either of them, agreed with complainant, in order to induce her to retain said notes, that their payment should be secured by a vendor's lien on said premises, and it is denied that they were retained by complainant with such understanding and agreement. It is denied that said notes, or either of them, were for purchase money, or complainant had or has any lien on said premises for purchase money. The deeds from Leonidas E. Wade and wife, F. Tuly Wade, to W. P. Ward, and from the latter to Leonidas E. Wade, trustee, with the alleged stipulations therein, are admitted; but it is denied that either of said deeds was without consideration, or that they were a device of defendant L. E. Wade to hinder and prevent complainant from enforcing payment due her upon said notes. There was also the general traverse in the answer.

An answer of the minors, by a guardian ad litem, claimed protection for them on account of their age, and submitted their rights to the consideration of the court, with prayer for strict proof of the matters alleged in the bill.

Replications were filed, evidence taken for both parties, and upon final hearing the court dismissed the bill, from which decree complainant has appealed.

A sufficient statement of the facts will appear in the opinion.

OPINION

MABRY, J. (after stating the facts).

The main contention in support of the decree, and the one evidently, upon which it was based in the lower court, is that the complainant, Rosanna S. Lucas, under the ruling in McKeown v. Collins, 38 Fla. 276, 21 So. 103, lost or waived her vendor's lien on the land which she seeks by her bill to charge with purchase money. Testimony was introduced before the master on the part of defendants tending to establish an offset in favor of Leonidas E. Wade for board of complainant to an amount equal to her alleged purchasemoney demand, if not larger, but the court excluded this evidence in reaching a final decision. The answers do not set up as a defense that complainant waived her vendor's lien on the land; nor do they make any allusion to the offset for board, or any other such demand. The answer of Leonidas E. Wade consists of bare denial of the literal allegations of the bill, with an admission of a few facts therein stated, and, though not excepted to, is not, in the light of the facts disclosed, entitled to much consideration on the essential points upon which the case must be determined. Were it not for the fact that Leonidas E. Wade appears to be now acting for his minor children, and their guardian ad litem has by answer asked the care and protection of the court in their behalf, we would hold that neither the defense of a waiver of the vendor's lien, nor that of an offset for board, was open for consideration under the pleadings in this case. But infants are entitled to special protection in a court of chancery, and we therefore examine the grounds upon which the decree can rest, without reference to the question of pleading. We must proceed, however, upon the theory that the waiver of the lien which arises in equity in favor of a vendor of real estate for unpaid purchase money is defensive matter, and the burden of...