Rich v. Hunter

• Decision Date: 07 December 1938
• Citation: 185 So. 141,135 Fla. 309
• Parties: RICH et al. v. HUNTER et al.
• Court: Florida Supreme Court

185 So. 141

135 Fla. 309

RICH et al. v. HUNTER et al.

Florida Supreme Court, Division B.

December 7, 1938

Rehearing Denied Dec. 28, 1938.

Action by Rusher Rich and another, by their next friend, Irwin Cauthen, and others against Herbert B. Hunter, as executor of the last will and testament of A.Rich, deceased, and individually, and others for cancellation of a deed and other relief.The decree dismissed the bill and awarded the property to defendants, and plaintiffs appeal.

Reversed and remanded.Appeal from Circuit Court, Lake County; J. C. B. Koonce, judge.

COUNSEL

Giles F. Lewis, of Orlando, and Harry P. Johnson, of Tavares, for appellants.

C Rogers Wells, of Leesburg, for appellees.

OPINION

PER CURIAM.

This appeal is from an order revoking an order authorizing plaintiffs to file interrogatories, from an order denying a motion to allow introduction of further testimony, and from the final decree, dismissing the bill and awarding the property to the defendants.

The bill of complaint was instituted by the five children of A.Rich, deceased, two of them being minors and suing by their next friend, who were alleged to be the sole and only surviving heirs at law of A.Rich, deceased.The bill prayed that the proceedings to dispossess plaintiffs of their property be stayed; that a receiver be appointed to take charge of the property; that Herbert B. Hunter, as executor of the last will and testament of A.Rich, deceased deliver to the receiver, funds in his hands as shown by his petition filed before the County Judge of Lake County; that Herbert B. Hunter account for the fruit picked from the property for the 1935-1936 season; that the deed from A.Rich to Herbert W. Hardman and Clara M. Hardman, his wife, be declared void and cancelled of record; and for general relief.

The bill of complaint was predicated upon the theory that 'Herbert B. Hunter conceived the fraudulent scheme and plan of fraudulently acquiring title to' the property involved.The bill alleged in substance that A.Rich died in Ocala, on June 6, 1936, seized and possessed of certain described real estate in Lisbon, Lake County, Florida containing approximately ten acres, which he had occupied as his homestead; that said property descended to plaintiffs as the sole surviving heirs at law of deceased; that A.Rich acquired title to said property February 12, 1912, and occupied it continuously as a homestead until his death, and plaintiffs have continued to occupy it since then as a homestead; that A.Rich and his wife Rosa Rich'were ignorant and unlearned and aged' negroes, and Herbert B Hunter'is a shrewd, young, white business man, and is possessed of a pleasing personality', and that the latter by 'undue influence, importunities, persuasion, false and fraudulent representations' procured from A.Rich and his wife two options to purchase said property, gaining for Hunter 'an unfair and unconscionable advantage' over A.Rich and his wife; that Rosa Rich could read a little and had a keener mind than A.Rich; that after the death of Rosa Rich, on November 17, 1934, Herbert B. Hunter, knowing of the feebleness and ignorance of A.Rich, and having exclusive options to purchase said property at a fraction of its true value, had A.Rich sign a deed, without consideration, conveying said property to Herbert W. Hardman and wife, Clara M. Hardman; that Hardman is an uncle of Hunter and the Hardmans hold said property in trust for Hunter; that Hunter had prepared and had signed by A.Rich, a will, making Hunter executor; that during the 1935-1936 season, Hunter picked the citrus crop from said property, amounting to 1,000-1,500 boxes, which should have been worth $1,200-$1,500, and has not accounted for the same; that the Hardmans and Hunter have instituted, in the Circuit Court of Lake County, suit for forcible or unlawful detainer, or both, to recover possession of the property; that about seven acres of the property is citrus grove and it is necessary that a receiver be appointed to cultivate it and market the fruit.

An amendment was filed to the prayer, asking that the two options on the property obtained by Herbert B. Hunter from A.Rich and wife be decreed to be void and cancelled of record.

The bill was further amended by adding an allegation that in obtaining the deed to the property, Herbert B. Hunter was not acting for himself, but was acting as agent of the Hardmans.

The Hardmans filed an answer to the bill of complaint; and Hunter, in his individual and representative capacities, filed a separate answer to the bill.

On October 7, 1936, A. S. Clark was appointed receiver of the property, upon his giving a bond for faithful performance; and he was ordered to make all reports required by statute and rule of court, and to make no expenditure for fertilization or cultivation without approval of the court.On February 26, 1937, the report of the receiver was approved, certain expenses were ordered paid to him, and he and his bond both ordered discharged.

On December 28, 1936, and on January 8, 1937, testimony was taken before the Hon. J. C. B. Koonce, Circuit Judge.

On January 12, 1937, the court entered an order granting plaintiffs permission to file interrogatories for discovery by defendants of facts and documents material to the support of plaintiffs' cause of action.

On the following day, the interrogatories were propounded by the plaintiffs.

On the next succeeding day, January 14, 1937, the judge ordered that the order allowing plaintiffs to file interrogatories be revoked, because 'said interrogatories, if answered, have no probative effect.'

On the following day, January 15, 1937, plaintiffs asked for permission to introduce further testimony in the cause, and to be allowed a reasonable time, to be set by the court, in which to do it.

On the same date, the court denied this motion, and allowed plaintiffs to amend their bill of complaint, and allowed the answers already filed to stand to any amended bill that might be filed.

The defendants moved that the court enter final decree in the cause.Whereupon, the court entered final decree, dismissing the bill of complaint, but retaining jurisdiction to enter any orders regarding costs and the receivership, ordering that the Hardmans or their duly authorized representatives or agents be put into full possession of the property, and requiring the receiver to make a full report of his receivership.

All of the testimony at the hearings was introduced by the plaintiffs, there being no attempt on the part of the defendants to introduce any testimony at all.The testimony introduced was not contradicted, and tends to show that A.Rich was not mentally capable of handling his own affairs.

True Adams, a negro, who lived about a mile and a half from A.Rich, testified that beginning with the bank closing in March, 1933, A. Rich kept getting worse mentally, and that after his wife died he practically lost his mind; that he once relieved his kidneys on the public streets of Leesburg; that he was never completely right during his last few years; that once witness went to pay A.Rich for the hire of a mule, and Rich did not remember the transaction; that later in the conversation Rich pulled out of his pocket, the money that had been paid him, and wanted to know where it came from; that Rich then came to himself and remembered being paid.

Milton Wright, another negro, about 65 years old, gave the following testimony;

'Q.Did you see him do anything, or hear him say anything, except that, that made you believe his mind was not right?A.Yes, sir.I told him one day that I wanted to get his mule tomorrow, on Saturday.He says, 'All right.'I went over there early in the morning to get the mule.I called him and he come out and told the young boy to go hitch up the mule.The boy brought the mule to the house and he come to the door again, and said 'Have you done your plowing?'I says, 'No, I haven't started yet; I am fixing to start.'He said, 'I didn't know.My mind is bad sometimes.I thought you had done a day's work and brought the mule back.'That was early in the morning about 7:30.He said, 'Sometimes I am just about crazy.'

'Q.Did you hear him say anything else, or do anything else, that made you think his mind was not right?A.Sometimes me and him would be talking, and he would ask me something and I would tell him as best I could, and maybe in 25 or 30 minutes he would ask me the same question over again.I would say, 'I told you that not long ago', and he would say, 'You did?I forgot it.I have not much mind now.”

There was testimony to the effect that A.Rich seemed to have a lot of confidence in white people, and that he could be easily influenced by any one in whom he had confidence.

C. T. Edwards, a negro preacher, testified as follows:

'Q.From what you saw of him (A. Rich) from 1934 until his death, would you say during that period of time he was able to comprehend the property he had the ordinary distribution of it--in other words could he in his mind figure out what he had and what he wanted to do with it?A.No. sir; I don't think he could.I couldn't see anything in him as a man who showed any business along that line.I didn't know of his qualifications.I found him out in the field.I told him I wanted him to qualify as a special man who had money as trustee; and I had to have money, and I said, 'I selected you myself', and he agreed with it, and rejected it within the next fifteen or twenty minutes.'

E. Rich, a son of A.Rich, and half brother of plaintiffs, testified as follows:

'A.* * * He had an old cow out there and she got out.I went out there one evening and he said he was going to kill her.I said, 'Give her to me.'He s...