Simmons v. Carlton

• Decision Date: 21 October 1902
• Parties: SIMMONS v. CARLTON.
• Court: Florida Supreme Court

33 So. 408

44 Fla. 719

SIMMONS v. CARLTON.

Florida Supreme Court

October 21, 1902

Appeal from circuit court, De Soto county; Barron Phillips, Judge.

Bill by Steven J. Carlton against Samuel J. Simmons. Decree for plaintiff, and defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. A bill to remove a cloud upon title must allege that the complainant is not only the owner, but that he is in possession of the land the title to which is alleged to be clouded, or that it is wild and unoccupied.

2. Prior to the enactment of chapter 4739, Acts 1899, where the instrument or proceeding complained of as constituting a cloud upon title was void upon its face, or where the instrument was not void upon its face, but the party claiming under it must, in order to recover upon it, have necessarily offered evidence that would inevitably show its invalidity and destroy its effect, such instrument was not such a cloud upon title as that a bill in equity would lie to remove it.

COUNSEL Hammond & Brady, for appellant.

G. A Hanson, for appellee.

OPINION

PER CURIAM.

This cause was referred by the court to its commissioners for investigation, and they report that the decree appealed from ought to be reversed.

From the abstracts of record it appears that on February 20, 1897 appellee filed in the circuit court of De Soto county an amended bill of complaint, in which he alleged that the property involved in said suit, consisting of certain real estate therein described, was sold under an execution in favor of the Emerson Fisher Company against Steven J. Carlton for the sum of $49.88 principal, $1.08 interest, and $28.03 costs and attorneys' fees, making a total of $78.99 which was issued by the circuit court of De Soto county upon a judgment obtained in the county court of said county upon the filing of a transcript of said judgment in the office of the clerk of said circuit court; that the execution and the sale made thereunder were illegal and void, for the reason that the county court which had jurisdiction of the cause of the Emerson Fisher Company against said Steven J. Carlton and which rendered the judgment against him, was a court of civil jurisdiction up to $500, under the constitution of Florida, with full power to issue and carry into effect all of its own judgments, and that the circuit court had no jurisdiction to issue an execution on a judgment rendered in said county court, and that the proceedings, so far as the sale was concerned, were invalid and void. The bill prayed that the sheriff's sale be set aside, that the deed made by him be delivered up and canceled, and that the execution be quashed, and held for naught.

On April 28, 1897, the appellant, Samuel J. Simmons, filed his answer to the amended bill, in which he admitted that the judgment under which said land was sold was obtained in the county court of De Soto county for the sum alleged; that a transcript thereof was filed in the office of the clerk of the circuit court of said county; that the execution issued thereon was issued by the clerk of that court, and that the sale of the property described in the bill was made under that execution; but denied that the execution was illegal, and alleged that same was legal in every respect. The complainant introduced in evidence a certified copy of the judgment of the county court, the advertisement of the sheriff's sale under the execution issued by the circuit clerk upon such judgment, and the sheriff's deed in pursuance of such sale, purporting to convey the...