Sawyer v. Gustason

• Decision Date: 13 June 1928
• Citation: 118 So. 57,96 Fla. 6
• Parties: SAWYER v. GUSTASON et al.
• Court: Florida Supreme Court

118 So. 57

96 Fla. 6

SAWYER v. GUSTASON et al.

Florida Supreme Court

June 13, 1928

En Banc.

Suit by J. D. Sawyer against Charles A. Gustason and others. Decree for plaintiff, and, from an order granting a motion of defendant named to set aside a decree pro confesso, and final decree, plaintiff appeals.

Affirmed.

Ellis C.J., dissenting.

Syllabus by the Court

SYLLABUS

Service of chancery subpoena on resident agent in charge of property of individual nonresident is not sufficient to bring latter into court (Rev. Gas. St. 1920, § 2599 et seq.; § 3110). Service of a chancery subpoena on a resident agent, in charge of the property of an individual nonresident, is not sufficient to bring the latter into court.

Person claiming title to real estate, though not in possession, may sue to quiet title against any person not in actual possession claiming adverse interest (Rev. Gen. St. 1920, § 3213). Section 3213, Rev. Gen. Stats., made it possible for a party, whether in actual possession or not, claiming title to real estate, to bring suit to quiet such title against any person not in actual possession who claimed an adverse interest or estate legal or equitable therein.

Person claiming legal title to land cannot maintain bill is equity to quiet title against one in possession thereof (Rev. Gen St. 1920, § 3213). Section 3213, Rev. Gen. Stats., does not change the rule that a person claiming the legal title to land which is in the possession of another cannot maintain a bill in equity against the latter to quiet title or remove as cloud therefrom the claim of the party so in possession.

Court properly granted motion to vacate decree quieting title against nonresident defendant, on showing lands were in actual possession of such defendant through agent (Rev. Gen St. 1920, § 3111). Where, in a suit to quiet title against a nonresident, as to whom constructive service by publication was had, the bill alleged that the lands were wild unoccupied, and unimproved, but it was subsequently made to appear to the court, by motion of such defendant to vacate the decree rendered in favor of the complainant, that such allegation was untrue and that the lands were in fact in actual possession of such nonresident defendant through an agent, the action of the court in granting the motion to vacate will be sustained; the defendant having acted with due diligence upon learning of such decree.

Decree quieting title against nonresident defendant in actual possession of land through agent held not void but merely voidable. Such decree, being valid on its face, and there being nothing in the record showing it to be otherwise, was not void, but merely voidable, as the facts showing the court's lack of jurisdiction could only be established by matter dehors the record.

Defendant, free from laches, may secure relief by motion to vacate final decree obtained on false allegation of jurisdictional facts; defendant, to secure relief by motion to vacate decree, must show deceit, surprise, or irregularity, reasonable diligence, and meritorious defense. Where the jurisdiction of a court of equity has been wrongfully invoked and a final decree obtained upon false allegations of jurisdictional facts, the defendant, being free from laches, may obtain relief by way of motion to vacate such final decree and the decree pro confesso upon which it was based. Under and by such motion, it must be shown that there was deceit, surprise, or irregularity in obtaining such decree; that the defendant has acted bona fide and with reasonable diligence, and has a meritorious defense.

Remedy as to decree quieting title against nonresident defendant in possession of land through agent held by way of motion to vacate. There are cases where decrees, which have become final and absolute and which are sought to be impeached for fraud in their procurement, should properly be attacked by bill of review, or by original or supplemental bill in the nature of a bill of review, or by original bill, according to the circumstances of the particular case. But, under the facts of this case, the remedy by way of motion to vacate, with adequate notice to the opposite party, was allowable.

Appeal from Circuit Court, Hardee County; W. J. Barker, Judge.

COUNSEL

W. W. Whitehurst, of Wauchula, for appellant.

Gex & Waller, of Tallahassee, for appellees.

OPINION

BROWN J.

This is an appeal from an order granting a motion of defendant Gustason, a resident of Minnesota, to set aside a decree pro confesso and final decree in favor of complainant, and allowing him to file an answer theretofore tendered for filing. The motion was filed six months after the entry of the final decree attacked, which decree had been rendered in a suit to quiet title. The motion alleged that the defendant had not had any legal notice of the institution of the suit; that the affidavit and notice of publication were insufficient in law; that the defendant had an agent in the state upon whom service by subpoena could have been had; that he had been in quiet and undisputed possession of the property for over seven years, and was in possession when the suit was filed; that defendant's title was superior to complainant's claim; and that complainant or his solicitor knew, or by reasonable diligence could easily have obtained, defendant's post office address. The bill and the affidavit of nonresidence attached thereto had alleged that the defendant Gustason was a resident of some other state than the state of Florida, but his place of residence and address were unknown, yet believed to be within the United States, and that there was no person in the state of Florida service of subpoena upon whom would bind the defendant. The bill also alleged that the lands were wild, unoccupied, and unimproved. Eight weeks' publication was had of the order of publication. The statutory requirements as to constructive service by publication to known nonresident defendants appear to have been substantially complied with. See sections 3111, Revised General Statutes of Florida. While this may not be said as to the unknown defendants referred to in the bill to whom publication was also attempted to be made and as to whom sections 3112 and 3113, Revised General Statutes of Florida, as amended by chapter 8465 of the laws of 1921, applied, this defendant had no right to question the court's jurisdiction as to him on that ground. The publication to him, a known defendant, was sufficient under section 3111.

Nor was the allegation in the bill and affidavit that there was no person in this state service of subpoena upon whom would be binding upon the defendant shown to have been false. The affidavits in support of the motion tended to show that the defendant had a resident agent in charge of the property, though not residing upon it. But under our statutes service of a chancery subpoena or a summons ad res upon a mere agent of an individual is not sufficient to bring such individual into court. Sections 3110 and 2599 et seq., Revised General Statutes.

As the final decree in this case was rendered in February, 1925, later statutes, such as chapter 11383, Laws Extra Sess. 1925, approved November 30, 1925, chapter 10102, Laws of 1925, approved May 26, 1925, as amended by chapter 11364, Laws of 1925, Extra Session, approved November 30, 1925, have no application.

The bill was evidently filed under section 3213, Revised General Statutes, which is derived from an act of 1899. This act made it possible for a party, whether in actual possession or not, claiming title to real estate, to bring suit to quiet such title against any person not in actual possession who claims an adverse interest or estate, legal or equitable, therein. But this statute did not attempt to change the old rule that a person claiming the legal title to land in the possession of another could not maintain a bill in equity against such person in possession to quiet the complainant's title or remove as a cloud therefrom the claim of such party in possession. For in such case the complainant, having a claim of title, legal in its nature, and the defendant being in possession, had an adequate remedy at law by ejectment, and the defendant could not, by proceedings in equity to quiet title or remove a cloud, be deprived of his right to trial by jury in ejectment proceedings at law. Patton v. Crumpler, 29 Fla. 573, 11 So. 225; Sloan v. Sloan, 25 Fla. 53, 5 So. 603; Gamble v. Hamilton, 31 Fla. 401, 12 So. 229; Graham v. Fla. L. & M. Co., 33 Fla. 356, 14 So. 796; Trustees v. Gleason, 39 Fla. 771, 23 So. 539; Briles v. Bradford, 54 Fla. 501, 44 So. 937. Before this statute was adopted, the rule was that, in bills to quiet title or remove clouds from title, it must have been shown that the complainant was in possession of the land, or that the land was wild and unoccupied. Watson v. Holliday, 37 Fla. 488, 19 So. 640; Simmons v. Carlton, 44 Fla. 719, 33 So. 408: Morgan v. Dunwoody, 66 Fla. 522, 63 So. 905. Where the common-law remedy by ejectment was clear and adequate, a court of equity was without jurisdiction; nor could the Legislature confer jurisdiction upon it in any way that would conflict with the constitutional guaranties regarding trial by jury. Hughes v. Hannah, 39 Fla. 365, 22 So. 613; Trustees v. Gleason, supra. Such was the status of the law at the time the final decree of February 20, 1925, was rendered, and motion to vacate granted.

There were a number of affidavits submitted by both parties, upon the hearing of the motion to vacate, upon this question of possession. While there was considerable conflict, there was such a strong showing made to the effect that, at the time suit was brought and for some years prior thereto, defendant Gustason was and had been in...