Sloan v. Sloan

• Decision Date: 05 February 1889
• Citation: 5 So. 603,25 Fla. 53
• Parties: SLOAN et al. v. SLOAN et al.
• Court: Florida Supreme Court

5 So. 603

25 Fla. 53

SLOAN et al. v. SLOAN et al.

Florida Supreme Court

February 5, 1889

Appeal from circuit court, Marion county; THOMAS F. KING, Judge.

Syllabus by the Court

SYLLABUS

The general rule is that a party whose title to land is legal in its character must have possession of the land to entitle him to equitable relief against a cloud upon his title. Possession is not essential where the title is equitable.

Possession by a duly-authorized agent, having charge of all the land and engaged in keeping off trespassers, is sufficient to sustain the equitable jurisdiction in favor of owners of legal title who are themselves non-residents.

Where the instrument or proceeding complained of as constituting a cloud upon title is void upon its face, or where the instrument is not void upon its face, but the party claiming under it must, in order to recover upon it, necessarily offer evidence that will inevitably show its invalidity and destroy its effect, such instrument is not a 'cloud upon title,' within the legal definition of the term.

An administrator's deed purporting to convey lands sold by him under an order of a court which, as to its power to make such an order, is a court of special and limited jurisdiction, is not, nor are such deed and order and other sale proceedings, a cloud upon title, when the facts or fact essential to the court's jurisdiction to make the order do not appear on the order, or the proceedings upon which such order is based.

A tax deed regular upon its face, and which a statute has made prima facie evidence of the regularity of all the proceedings connected with the assessment and sale, but which is founded upon a void assessment, is a cloud upon title.

Neither the general revenue law of 1869, c. 1713, as amended in 1872 by chapter 1887, nor that of 1874, c. 1976, authorized a collector of revenue to assess lands for taxes. An assessment of land made under either of said statutes by a collector of revenue on a tax-roll of 1873, after the same had been delivered to him by the assessor for the collection of taxes was a nullity, and conferred no power upon him. A sale made by him under the above act of 1874, and a deed executed by the clerk of the court pursuant to such sale, conveyed no title to the purchaser, and the deed is not within the protection of the sixty-third section of the said act limiting the grounds upon which, and the time within which and action to set it aside may be commenced.

The county court, as it existed under the constitution of 1868, prior to the amendment of 1875, was, in its power to sell the lands of decedents for the payment of debts, a court of special and limited statutory jurisdiction, and not one of general and original constitutional jurisdiction over the subject of such sales.

Being a court of special and limited jurisdiction, an order made by it for the sale of land of a decedent is not of itself, independent of a recital of the jurisdictional fact in it, or in the sale proceedings culminating in it, evidence that the court had jurisdiction of the subject of such a sale.

Prior to the legislation of 1870, (section 40 et seq. p. 86 et seq. McClel. Dig.,) as to such sales, an exhaustion of the personal estate of the decedent was essential to the jurisdiction or power of the county court to order a sale; and unless the fact of such exhaustion appears in the order, or somewhere in the proceedings upon which it is based, the order is coram non judice, and void even upon a collateral attack. If the fact of such exhaustion appears anywhere in such proceedings, the order of sale, though it may be silent upon the subject of exhaustion, is nevertheless an adjudication of the existence of the fact of such exhaustion.

Adverse possession of land under claim of title founded on a written instrument must, to be effective against the true title, be continuous for the period of seven years.

COUNSEL

A. W. Cockrell & Son, for appellants.

C. P. & J. C. Cooper, for appellees.

The bill is one to remove a cloud upon title to land situated in Marion county, and was filed July 5, 1883 against the appellants by the appellees, Susan M. and Sallie H. Sloan, daughters and heirs of William Sloan, who died in Texas in 1862, seised and possessed of the land at his death.

On the 20th day of July, 1869, EDWARD BARKER, county judge of Marion county, appointed E. J. Harris, H. J. Mann, and C. Lopez 'to appraise the real estate of the late William Sloan, deceased,' and directed them to hand their appraisement to M. A. Clonts, administrator ex officio of said estate, stating in the appointment that Clonts should return the same to the court immediately. On the 21st day of the same month an appraisement of the following real estate, viz.: The E. 1/2 of section 14, township 15, range 23; the E. 1/2 of S.W. 1/4 section 14, township 15, range 23; the N.W. 1/4 of S.W. 1/4 section 14, township 15, range 23 E.; the S. 1/2 of N.W. 1/4 section 14, township 15, range 23 E.; the N.E. 1/4 of N.W. 1/4 section 23, township 15, range 23 E.; the S.W. 1/4 of N.W. 1/4 section 23, township 15, range 23; the W. 1/2 of N.W. 1/4 section 26, township 15, range 23 E.; the N.E. 1/4 of N.W. 1/4 section 26, township 15, range 23 E.; the W. 1/2 of section 27, township 15, range 23; the W. 1/2 of N.E. 1/4 section 27, township 15, range 23; the N.E. 1/4 of N.E. 1/4 of section 27, township 15, range 23 E.; and the S.E. 1/4 of N.E. 1/4 section 15, township 15, range 23 E.,--1,200 acres, more or less, valued at $2.50 per acre, making $3,000, signed by said appraisers,--was filed.

On the 24th day of August, 1869, a petition was filed in the county court of Marion county, signed, 'M. A. CLONTS, Sheriff and ex Officio Administrator of the Estate of William Sloan,' representing that he was such sheriff and administrator, and stating that 'due and legal notice for the space of four weeks had been published in the East Florida Banner that application would be made to the probate court of Marion county and state aforesaid, for permission to sell the real estate of William Sloan, late of Marion county, deceased;' and praying an order for the sale of the real estate of the aforesaid William Sloan, as the law in such cases provides. On the same day EDWARD BARKER, the county judge, made an order which recites the filing of the petition, and that Clonts 'has advertised as the law directs in the East Florida Banner, published at Ocala, for four weeks in succession, that on that day he would ask of this court an order to sell as above; and, there being nothing to the contrary appearing,' it allows the administrator 'to sell at public auction, in front of the court-house door at Ocala, the real estate of the said William Sloan, at the legal hour, one month from the date of this order.'

On the 28th or 29th of December, 1869, Clonts made 'his final report upon said estate, consisting of real estate alone, as will be seen by reference to the bill of appraisement, which lands were bid off by S. C. De Bruhl at the sum of ($664) six hundred and sixty-four dollars, of which amount $284.54 were paid, the balance being still due and unpaid, and titles not executed, and a suggestion of insolvency filed.' This report then proceeds to state how the amount paid in has been paid out, which is as follows:

For printing 600 appraisers' bills,	$ 12 00
Redemption of land for state taxes,	112 75
Letters of administration, $10; advertising, $6,	16 00
Tax for 1869,	61 55
Probate fees,	12 05
Six per cent. commission of $664,	39 84
Services rendered, filing petition, writing, etc.,	5 00
Summoning appraisers and services with them, .	5 00
Petitioning court for titles to S. M. Gary, and executing the same,	5 00
Petition to sell real estate and advertising,	5 00
Filing suggestion of insolvency, and presenting final report,	5 00
Redeeming lands, writing, etc.,	5 00
	--------
	$ 284 19

On January 5, 1870, the county judge made an order reciting the presentation on December 28, 1869, by Clonts of his final return of receipts and expenditures, with vouchers, and the resignation of Clonts, and that the whole amount he had expended is $284.19, and that received $284.54, and ordering that the return be received and filed, and that Clonts be discharged from any further responsibility as ex officio administrator of said estate.

On the 10th day of June, 1870, the county judge made an order which recites that, 'certain lands having been offered for sale in front of the court-house door, at Ocala, Marion county, Fla.,' by the said administrator, describing him, and 'the highest bidders being John B. E. Sloan and William P. Hall, on the 4th day of Octover, 1869;' and ordering 'that the report of the said sale of the said estate be and is hereby accepted, received, and confirmed,' and further ordering 'that the sheriff, John O. Matthews, ex officio administrator of the said estate, do execute and deliver proper titles to the aforesaid William B. E. Sloan and William P. Hall, highest bidders for the lands then and there sold.'

On the 14th day of the same month Matthews, as such sheriff and administrator, made a deed to said Sloan and Hall, conveying to them and their heirs, in consideration of $664, the receipt of which is acknowledged, the following lands, lying and situate in Marion county, state of Florida, containing in all 1,205 acres. It is not necessary to give the descriptions. The deed recites that Clonts, sheriff and administrator aforesaid, pursuant to an order issued out of the court of probate of Marion county, did on October 4, 1869, after legal advertisement thereof, offer for sale at public outcry, to...