Mcclinton v. Chapin

• Decision Date: 05 November 1907
• Citation: 45 So. 35,54 Fla. 510
• Parties: McCLINTON et al. v. CHAPIN et al.
• Court: Florida Supreme Court

45 So. 35

54 Fla. 510

McCLINTON et al. v. CHAPIN et al.

Florida Supreme Court, Division A.

November 5, 1907

Appeal from Circuit Court, St. Johns County; Rhydon M. Call, Judge.

Bill by Nathaniel McClinton and Mary McClinton against George H Chapin and Mary Agnes Chapin, his wife. Decree for defendants, and plaintiffs appeal. Affirmed.

Syllabus by the Court

SYLLABUS

It is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing.

A bill in equity must state facts, and not opinions or legal conclusions, and where fraud is relied upon the allegations or charges must be specific. In passing upon a demurrer to a bill every presumption is against the bill.

While a demurrer to the whole bill operates as an admission that all the allegations in the bill which are well pleaded are true it is only such allegations so pleaded that are admitted by the demurrer. An allegation of fraud in general terms without stating the facts constituting it, is insufficient and a demurrer to the bill is not a confession of the fraud.

COUNSEL

Baker & Baker and Hudson & Boggs, for appellants.

W. W. Dewhurst, for appellees.

OPINION

SHACKLEFORD C.J.

On the 4th day of October, 1905, the appellants filed their bill in chancery in the circuit court for St. Johns county against the appellees, which, omitting the purely formal parts, is as follows:

'Your orators, Nathaniel McClinton and Mary McClinton, of Jensen, in St. Lucie county, Florida, bring this their suit against George H. Chapin and Mary Agnes Chapin, his wife, of Boston, in the state of Massachusetts, and thereupon your orators complain and say: On or about the first day of April, 1904, the defendant George H. Chapin entered into negotiations with your orator Nathaniel McClinton for the sale to your orator by said defendant of the following described land, lying in St. Johns county in the state of Florida: Lot six (6) of section six (6) of township eight (8), south of range thirty (30) east, according to the public surveys containing forty acres more or less; being the same lands described in deeds recorded in the Deed Books XX, p. 518, and No. 1, p. 188, St. Johns county public records. Whereupon your said orator requested and demanded of said defendant an abstract of title to said land, and said defendant promised and agreed to furnish your orator with such abstract; but notwithstanding said promise the said defendant fraudulently failed, neglected, and refused to furnish to your said orator an abstract of title as promised, but said defendant did falsely and fraudulently represent to your orator that he, the said defendant, had a good and marketable title to said land and that the same was free of incumbrances, and that he, the said defendant, was then and there lawfully seised in fee simple of a good, absolute, and indefeasible estate of inheritance of and in all and singular the above-described premises, with the appurtenances thereto, and that he had good right, full power, and lawful authority to grant, bargain, sell, and convey the same. And by such representations so made by said defendant, your orator was deceived and was induced to purchase the land hereinbefore described, and did purchase the same for a sum of fourteen hundred ($1,400) dollars, and of said amount your orator paid to the said George H. Chapin the sum of five hundred ($500) dollars, and promised to pay the further sum of nine hundred ($900) dollars as hereinafter more fully set out. Thereupon the defendants, George H. Chapin and Mary Agnes Chapin, did on the 13th day of April, 1904, execute and deliver to your orator Nathaniel McClinton, a warranty deed purporting to convey to your said orator the land hereinabove described. Said deed is now of record in St. Johns county, Florida, in Book of Deeds No. 7, on page 273. In and by said deed the said George H. Chapin did enter into a covenant with your said orator in the words and figures following, to wit: 'And the said party of the first part said George H. Chapin for himself and for his heirs, executors and administrators, does covenant, promise and agree to and with said party of the second part his heirs and assigns, that the said party of the first part at the time of the sealing and delivery of these presents is lawfully seized in fee simple of a good, absolute and indefeasible estate of inheritance, of and in, all and singular the above granted, bargained and described premises, with the appurtenances, and has good right, full power, and lawful authority to grant, bargain, sell and convey the same in manner and form aforesaid. And that the said party of the second part, his heirs and assigns, shall and may at all times hereafter, peacefully and quietly have, hold, use, occupy, possess and enjoy the above granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction or disturbance of the said party of the first part his heirs or assigns, or of any other person or persons lawfully claiming or to claim the same. And that the same are now free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and incumbrances of what nature and kind soever.' And on the said 13th day of April, 1904, your orator executed and delivered to defendant George H. Chapin their note for the sum of nine hundred ($900) dollars, the balance of the purchase money due as above set forth, which sum was payable as follows: Three hundred ($300) dollars on the 13th day of April, 1905, three hundred ($300) dollars on the 13th day of April, 1906, and three hundred ($300) dollars on the 13th day of April, 1907, with interest at the rate of three per cent. per annum from date until paid. To secure the payment of said note your orators did then and there, by mortgage deed now of record in St. Johns county, Florida, in Mortgage Record O, at page 14, convey to said George H. Chapin all the land hereinbefore described. Your said orator would further show unto your honor that before the 13th day of April, 1905, he again demanded of said defendant George H. Chapin an abstract of title to the said land, but the said Chapin neglected and refused to furnish the same. Thereupon your said orator procured such abstract at his own expense and paid therefor the sum of twenty-five ($25) dollars. Your orator would further show unto your honor that on the said 13th day of April, 1904, the said defendant George H. Chapin had not, and that he has not now, a good or marketable title to said land, and that he was not lawfully seised in fee simple of a good absolute and indefeasible estate of inheritance of, in, and to all and singular the lands hereinbefore described, and that he had not a good right to convey the same. But your orators would show unto your honor that the title to the south half (1/2) of said lot six (6), and the south half (1/2) of the north half (1/2) thereof, and an undivided half (1/2) interest in the north half (1/2) of the north half (1/2) thereof, was on the 29th day of April, 1892, in one E. C. Terry, and that on said 29th day of April, in a case pending in the circuit court in and for St. Johns county, wherein the First National Bank of Florida was plaintiff and the said E. C. Terry was defendant, a judgment was rendered against the said Terry and in favor of the said First National Bank of Florida for the sum of one thousand three hundred forty-five dollars thirty-three cents ($1,345.33) damages and seventeen dollars thirty-eight cents ($17.38) as costs, and said judgment is now of record in said county and is an existing and valid lien against the lands last above mentioned. Your orators would further show unto your honor that all of the buildings and the greater part of all of the improvements on the tract of land hereinbefore described are located on the north half (1/2) of the north half (1/2) of said lot six (6) and that said north half (1/2) of the north half (1/2) of said lot six (6) is of greater value than all of the remainder of said tract. Your orators would further show unto your honor that at a tax sale held on the first day of August, 1898, the collector of taxes in and for St. Johns county, Florida, did sell all of said land for the taxes of the year 1897, as is evidenced by tax certificates Nos. 285, 286, 287, and 288 now of record in said county in Book No. 1, at page 207. And on the second day of July, 1900, the tax collector

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