Reid v. Barry

• Decision Date: 14 April 1927
• Citation: 112 So. 846,93 Fla. 849
• Parties: REID et al. v. BARRY.
• Court: Florida Supreme Court

112 So. 846

93 Fla. 849

REID et al. v. BARRY.

Florida Supreme Court, Division A.

April 14, 1927

Suit by Patrick Barry, Bishop of St. Augustine, against Robert R Reid and others to remove clouds from title. From an order overruling the defendants' demurrer to the complainant's bill, defendants appeal.

Affirmed.

See also, 90 Fla. 772, 107 So. 264.

Syllabus by the Court

SYLLABUS

Common-law rule that use of 'heirs' was ordinarily indispensable to conveyance of estate of inheritance formerly prevailed certain exceptions to common-law rule that use of 'heirs' was necessary to convey estate of inheritance were recognized, such as deeds to state, to corporations, or trust deeds (Rev. Gen. St. 1920, §§ 71, 3796). Prior to the enactment of chapter 5145, Laws of 1903, now section 3796 Rev. Gen. Stats., the common-law rule that the use of the word 'heirs' was ordinarily indispensable to the conveyance of an estate of inheritance prevailed in this state; certain exceptions, however, being recognized, such as deeds to the state, or to corporation, trust deeds, etc.

Statute providing conveyance without reference to 'heirs' or 'successors' should pass fee simple or grantor's whole estate, unless contrary appeared, was prospective only until 1925 amendment (Rev. Gen. St. 1920, § 3796; Laws 1925 c. 10170). The act of 1903, now appearing as section 8796 Rev. Gen. Stats., providing that, regardless of the exclusion of such words as 'heirs' or 'successors,' a conveyance would be construed to pass the fee simple or other whole estate of the grantor unless a contrary intention shall appear in the instrument, was prospective only in its operation; but by an amendatory act, chapter 10170, Laws of 1925, it was made applicable also to prior grants and conveyances. Whether the statute as amended could constitutionally be given a retrospective operation, so as to apply to the deed here in question, made in 1881, held unnecessary to the decision of this case.

Tendency of modern statutes and decisions has been to depart from arbitrary common-law rules and to consider language of instrument to determine grantor's intent (Rev. Gen. St. 1920, § 3796; Laws 1925, c. 10170). The tendency of modern statutes and decisions, of which our statutes above referred to are instances, has been to depart from some of the arbitrary common-law rules formerly obtaining as to the construction of deeds, and to consider the language of the entire instrument in order to determine the intent of the grantor, both as to the character of estate and the property conveyed and to so construe the instrument as if legally possible to effectuate such intent.

Generally under deed creating express trust, trustees take legal title, and equitable estate vests in cestui que trust without regard to words of limitation. The general rule is that under a deed creating an express trust the trustees take such legal title as is necessary to or commensurate with the duties of the trust, and the equitable estate vested in the cestui que trust, without regard to the words of limitation used.

Demurrer to whole hill admits truth of allegations of fact well pleaded and conclusions necessarily resulting therefrom; every presumption is against bill on demurrer. While, upon a demurrer to the whole bill, such demurrer operates as an admission of the truth of all the allegations of fact well pleaded. as well as the conclusions necessarily resulting from such facts, yet, in passing upon such demurrer, every presumption is against the bill; the pleading being construed most strongly against the pleader.

Statutes requiring trusts in lands to be in writing apply to express trusts, but not to resulting or constructive trusts; to prove express trusts, writing creating them must show donor or grantor, trustee, beneficiary, property conveyed, and must be executed by party creating or declaring trust in statutory manner (Rev. Gen. St. 1920, §§ 3791, 3792). Sections 3791 and 3792, requiring trusts in lands to be manifested and proved by some writing and prescribing how such writing shall be executed, do not apply to resulting or constructive trusts. But as to express trusts, they do apply, and under such statutes, in order for express trusts to be proved for judicial enforcement, such writing must manifest the essential elements of a trust--among which are the donor or grantor, the trustee, the beneficiary, and the property conveyed for the purpose of the trust--and must be executed by the party creating or declaring the trust in the manner the statute provides.

Where both legal estate and beneficial enjoyment are vested in same party, no trust results; absolute control and power of disposition are inconsistent with idea of trust; trustee and beneficiary must be distinct persons or entities; merger of legal estate and beneficial enjoyment in same person or entity effects legal estate in such party of same duration as beneficial interest designed. No trust results where both the legal estate and the beneficial enjoyment are vested in the same party. Absolute control and power of disposition are inconsistent with the idea of a trust. The trustee and beneficiary must be distinct personalities or entitles, and the merger of both interests in the same person or entity would effect a legal estate in such party of the same duration as the beneficial interest designed.

Cestui que trust expressly named, or so designated or described that he can be identified, must be found in trust instrument. There must be found, within the four corners of written instruments declaring an express trust, a cestui que trust, who must either be expressly named or so designated or described that he can be identified.

If trust deed purporting to convey grantor's entire estate in fee based on valuable consideration, containing covenants of seisin, warranty, and quiet enjoyment, fails sufficiently to declare trust, generally grantee paying consideration takes beneficial interest. If a deed intended as a trust deed is made for a valuable consideration, containing covenants of seisin, warranty, and quiet enjoyment, and purports to convey the entire estate of the grantor in fee, the grantee paying the consideration for the estate will, as a general rule, take the beneficial interest if the trust fails to be sufficiently declared, or fails in any way; the instrument being conclusive between the parties and their privies, and excluding the idea of any resulting trust to the grantor.

Express trusts in realty cannot be proved by parol or enforced against one denying their existence; parol evidence will not be heard to ingraft trust on conveyance absolute in terms; statutes requiring trust of lands to be in writing held to go to enforceable existence of trust rather than to constitute rule of evidence (Rev. Gen. St. 1920, §§ 3791, 3792). Under our statutes, express trusts in realty cannot be proved by parol or enforced against a party who denies the existence of such a trust; nor will parol evidence be heard to ingraft an express trust upon a conveyance absolute in terms. Our statutes construed together constitute something more than a mere rule of evidence, and as to such cases as come within their letter and spirit, they in effect go to the enforceable existence of the trust itself.

If trust deed is unambiguous, donor's or grantor's intention must be collected therefrom; if trust deed's language is ambiguous, evidence of surrounding facts and circumstances is admissible to explain and determine meaning and intent of terms (Rev. Gen. St. 1920, §§ 3791, 3792). Where the language of a trust deed is free from ambiguity, the donor's or grantor's intention must be collected from the words used by him. But, in keeping with the familiar parol evidence rule applicable to the construction of ordinary deeds, where the language is ambiguous, the courts will in proper cases admit evidence of the surrounding facts and circumstances, not to contradict, but to explain and determine, the meaning and intent of the terms employed by the donor or grantor.

Deed to bishop, and his successors and assigns, containing covenants of seisin, quiet enjoyment, and warranty, vested complete legal title in fee with full power of alienation in grantee and successors in office in official capacities; in deed to bishop, his successors and assigns, word 'heirs' was not required to convey fee simple (Rev. Gen. St. 1920, § 3796; Laws 1925, c. 10170). If the deed in this case had read merely to 'Right Rev. John Moore, Bishop of St. Augustine,' the words 'Bishop of St. Augustine,' not being preceded by the word 'as,' might have been merely descriptio personae; but the grantee in the deed is, 'Right Rev. John Moore, Bishop of St. Augustine, Florida, of the County of St. Johns,' 'and his successors in office and assigns forever,' and the deed contains full covenants of seisin, quiet enjoyment, and warranty. Held, that it was the plain purpose of this deed to vest the complete legal title in fee, with full power of alienation, in Bishop Moore, and his successors in office, in their official, as contradistinguished from their individual, capacities, respectively; and that, as the title was to pass, not to his heirs, but to his successors in office, the use of the word 'heirs' would have been as inappropriate and meaningless as in a deed to a corporation, hence the law did not require it.

Deed to bishop and his successors and assigns, not showing intention to create trust and not naming or designating beneficiary held not to create express trust. Inasmuch as the deed to 'Right Rev. John Moore, Bishop of St. Augustine,' 'and his successors in office and assigns,' does not by its terms manifest and intention to create a trust, and no beneficiary is either named or so...