Munroe v. Carroll

• Citation: 80 Fla. 206,86 So. 193
• Parties: MUNROE et al. v. CARROLL et al.
• Decision Date: 05 July 1920
• Court: United States State Supreme Court of Florida

86 So. 193

80 Fla. 206

MUNROE et al. v. CARROLL et al.

Florida Supreme Court

July 5, 1920

Suit by Robert H. Munroe and others against Fannie W. Carroll, as executrix of Charles T. Carroll, deceased, and another. Bill of complaint dismissed, and complainants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Complainants suing representative, cannot testify to their transactions with decedent. In a suit in equity against the representative of a deceased person to declare an instrument in the form of a deed of conveyance absolute to be a mortgage, the complainants are not competent witnesses in said suit to testify as to any transactions or communications occurring between them and the said deceased person.

Statute construed to remove common-law disability of witnesses by reason of interest. Section 1505, General Statutes of Florida 1906, relating to the competency of witnesses as affected by interests, is an enlargement and not a restricting of the common-law rule, and removed the common-law disability of a witness arising from interest in the event of litigation except in those cases when one of the parties to the transaction or communication was at the time of the examination dead or insane.

Evidence not admissible under exception to common-law rule prohibiting party in interest from testifying as to transaction with decedent. Where, under the provisions of section 2494, General Statutes of Florida 1906, complainants in a suit against the representative of a deceased person seek to show that a deed absolute in form executed by them was in fact a mortgage, the testimony of the complainants concerning their relations with the grantee during his lifetime, involving communications and transactions with him by which they seek to establish the character of the instrument as a mortgage is not admissible under any exception at common law to the rule prohibiting a party in interest from testifying in a cause.

COUNSEL

Appeal from Circuit Court, Jefferson County; E. C. Love, judge.

W. C. Hodges and Fred H. Davis, both of Tallahassee, for appellants.

T. T. Turnbull and S.D. Clarke, both of Monticello, for appellees.

OPINION

ELLIS J.

The appellants, who were complainants below, exhibited their bill in the circuit court for Jefferson county against Fannie W. Carroll, as administratrix of the estate of Charles T. Carroll, deceased, and J. A. McClellan, and prayed that a certain instrument in writing, appearing on its face to be a deed of conveyance executed by Robart Munroe, Aaron Hogan, and Henry Hogan, In December, 1894, to Charles T. Carroll, be declared and decreed to be a mortgage, and that an account be taken of the amount due thereunder; that complainants be permitted to pay it, and that the instrument be canceled of record; that in the meantime the defendants and their agents be restrained from entering upon the premises described in the alleged mortgage or in any wise interfering with the complainants' possession and use of the lands.

The bill alleged in substance:

That Munroe and the two Hogans were the owners of the land described in the deed, acquiring the same by purchase in January, 1882, since which time they, and, since the death of Henry Hogan, his heirs, Alice Brown, Delpha Proctor, and Reuben Hogan, together with Munroe and Aaron Hogan, held and maintained open and exclusive possession of the lands; that Charles T. Carroll, in the year 1882 and for some years afterwards until his death, was a merchant in the town of Monticello, and that Munroe and the Hogans traded on account with Carroll for sundry supplies and merchandise for the home and farm, and their trading extended through a period of many years, during which time periodically the Hogans and Munroe would pay to Mr. Carroll the money arising from the sale of the farm products; that they paid on their account cash, labor, and farm produce an amount equal, or nearly so, to the price and value of the goods and merchandise sold to them.

That in December, 1894, Mr. Carroll claimed that the Hogans and Munroe owed him on the account the sum of $1,218.45; that they were not satisfied that such sum was due, but relied upon the statement of Mr. Carroll, and at his request executed the written instrument mentioned as security for the payment of the debt; that he explained to them at the time that it was a trust deed or mortgage to secure the sum due on their account; that the instrument, although a deed of conveyance on its face, a fact which they did not discover until after the death of Mr. Carroll in 1903, was then and is now a mortgage to secure the payment of the debt mentioned.

That the complainants continued their trading with Mr. Carroll until his death, occupied and cultivated the land, paid taxes thereon, and exercised control and ownership over it; that the amount of the debt for which the mortgage was given has been paid; that since the death of Mr. Carroll the administratrix of his estate denies that the deed is a mortgage, and insists that it is an absolute conveyance of the land, and was never intended as and for a security for the payment of a debt; that she refuses to come to any accounting with the complainants as to the transactions between them and Mr. Carroll; that J. A. McClellan claims to be lessee of the premises from the defendant Fannie W. Carroll, and has sought by intimidation, abuse, and profane and wicked language to terrorize the complainants and compel them to surrender possession of the premises to him; that he has forcibly taken possession of part of the premises, assaulted the complainants with deadly weapons, and maintains possession of a portion of the lands by force, intimidation, and brutality.

The defendant Fannie W. Carroll answered the bill, denying the allegations of ownership of the land by the complainants, that the deed of conveyance was given as security for a debt, that she refused an accounting to them, and averred that they were now largely indebted to the estate of Mr. Carroll, and had made no effort to pay the same.

There was no answer by the defendant McClellan.

Testimony was taken before a special examiner, and the court upon final hearing dismissed the bill of complaint, because the evidence failed to support its allegations. This result was reached by striking out that part of the testimony of Robert H. Munroe and Aaron Hogan relating to the transactions and communications alleged to have been conducted by them with Charles T. Carroll, who was deceased at the time of the institution of the suit, concerning the nature of the deed from Munroe and the Hogans to the said Charles T. Carroll. From this decree the complainants appealed.

There are four assignments of error, but all involve the one question of the correctness of the court's ruling in eliminating the testimony of Munroe and Hogan relating to the transactions between them and Mr. Carroll, who was at the time deceased, concerning the nature of the deed which was in form a conveyance of the land.

The language of that portion of the decree regarding the testimony of Munroe and Hogan relating to transactions and communications with Mr. Carroll during his lifetime concerning the nature of the deed is sufficiently broad to include all testimony as to business dealings with him, the purchase of supplies, the running of accounts, the payments on same, statements of accounts rendered by Mr. Carroll, payments to him of sums of money on account of taxes on the land after the date of the deed, and payments in turn by Mr. Carroll to the tax collector, all testimony by Munroe and Hogan as to the transaction in December, 1894, with Mr. Carroll, in which they executed the written instrument as a mortgage to secure the payment of the debt they owed, Mr. Carroll's statement to them concerning the intention of the parties and the purpose of the instrument, all testimony as to his purpose or intention in requiring them to execute the paper, and the necessity or reason for it, and the amount each was to pay to obtain a release. With this testimony excluded, there was no evidence sufficient to support the allegations of the bill as to the nature of the instrument, which was alleged to be a mortgage other than the testimony of the witnesses Munroe and Hogan as to their purpose and intention in executing the paper, which we do not deem to have been excluded to stricken by the chancellor.

Section 1505 of the General Statutes of 1906 is as follows:

'No person, in any court, or before any officer acting judicially, shall be excluded from testifying as a witness by reason of his interest in the event of the action or proceeding, or because he is a party thereto: Provided, however, that no party to such action or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party, or interested person, derives any interest or title, by assignment or otherwise, shall be examined as a witness in regard to

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