Smith v. Love

• Decision Date: 28 March 1905
• Citation: 49 Fla. 230,38 So. 376
• Parties: SMITH et al. v. LOVE.[*]
• Court: Florida Supreme Court

38 So. 376

49 Fla. 230

SMITH et al. v. LOVE.^[*]

Florida Supreme Court

March 28, 1905

In Banc. Error to Circuit Court, Jackson County; Charles B Parkhill, Judge.

Action by Richard Love against Hannah Smith and Joseph Smith, her husband. Judgment for plaintiff, and defendants bring error. Reversed.

Cockrell J., dissenting in part.

Syllabus by the Court

SYLLABUS

1. The plea upon equitable grounds provided for by section 1047 of the Revised Statutes of Florida of 1892 is applicable in actions of ejectment in this state. Such a plea interposed and maintained by proof in an ejectment suit, alleging such matter as would entitle the pleader thereof to an injunction in equity, if set forth by bill, restraining the judgment in ejectment against him, has the effect, not of procuring for the pleader in the ejectment suit at law the same full relief as could be meted out in a court of equity, but of defeating the plaintiff's claim to possession sought by such suit in ejectment, and, when such plea is sustained by the proofs entitles the defendant to a verdict.

2. Where a party obtains a patent for lands from the United States by fraudulent imposition on the officers of the Land Department, equity will give relief to the party legally entitled to receive the patent.

3. While a court of equity has no power to hear and determine any question affecting the title to public lands of the United States until the Land Department has determined the matter and the title has passed from the government, yet after the title has passed to private parties, a court of equity will convert the holder of the legal title into a trustee to the true owner, if, in equity and good conscience, and by the laws of Congress, and rules of the department thereunder, it ought to have gone to another.

4. Facts alleged in plea upon equitable grounds held sufficient, if maintained by proofs, to constitute the plaintiff in this case a trustee holding the legal title to the land in controversy in trust for the defendant.

COUNSEL

C. L. Wilson and W. E. B. Smith, for plaintiffs in error.

OPINION

TAYLOR J.

The defendant in error, Richard Love, during the lifetime of Silas Smith, instituted against Smith an action of ejectment in the circuit court for Jackson county for the recovery of the possession of the N.W. 1/4 of the N.E. 1/4 of section 33 in township 5 N., of range 10 W. of Tallahassee meridian containing 40 acres. To the declaration, besides the plea of not guilty, the defendant Silas Smith during his lifetime interposed the following plea upon equitable grounds: 'And for a second plea, and plea upon equitable grounds: That the plaintiff claims title and right of possession to the land described in the declaration by virtue of a patent from the United States President, issued to him on the 1st day of February, A. D. 1893, under the act of Congress approved May 20, 1862 (12 Stat. 392,) c. 75), 'To secure homesteads to actual settlers on the public domain,' and the acts supplemental thereto, conveying the N. 1/2 of the N.W. 1/4 of section 33, township 5 north, of range 10 west, in Jackson county, Florida. That the entry of said lands under the acts of Congress aforesaid (said entry being No. 22,129) was made on December 10, 1891, through the district land office at Gainesville, the application therefor having been made before the clerk of the Circuit Court of said county of Jackson; on March 17, 1892, final proof was made; and on June 13, 1892, final receipt No. 10,090 was issued to said plaintiff, after which patent issued as aforesaid. That on and before September 28, 1883, the entire N.W. 1/4 of said section was claimed by the Pensacola & Atlantic Railroad Company, a corporation chartered by the laws of Florida, and shortly prior to said date the plaintiff and defendant and one Burton Hunter and one Isaac Smith entered into a mutual agreement to purchase said lands from said company and divide same up as follows: N.E. 1/4 of N.W. 1/4 to plaintiff (the land in dispute), S.E. 1/4 of N.W. 1/4 to said Burton Hunter, and S.W. 1/4 of N.W. 1/4 to said Isaac Smith. That in pursuance of said agreement said parties procured one Frank Phillips to purchase said N.W. 1/4 and take title in his own name, which he did by deed from said company to him dated September 28, 1883. That in further pursuance of said understanding and agreement the said Phillips made deed according to the request of the respective parties at different times, as they would pay the respective shares of the purchase money, as follows: On January 15, 1884, he deeded to Mary Smith, wife of Isaac Smith, and Hannah Smith, wife of Silas Smith, defendant, the W. 1/2 of the N.W. 1/4, which said parties agreed to divide as follows: N.W. 1/4 of N.W. 1/4 to Hannah Smith, and the other forty to Mary Smith; and on the same day he deeded to Lucy Hunter, wife of said Burton Hunter, the S.E. 1/4 of N.W. 1/4; and on June 29, 1885, he deeded to Carrie Love, wife of plaintiff, the N.E. 1/4 of N.W. 1/4; and the respective parties from the time they entered into possession of said land claimed the same under their purchases aforesaid until about the date of the said homestead entry, as more fully explained hereinafter. That subsequent to the date of said deed to defendant's wife the defendant moved upon his said land, built a dwelling house and other improvements thereon, of a value of at least $400, cleared up and fenced a portion of said land at an expense of at least $25, and made said land a permanent home for himself and family, and has continuously resided there, and maintained the possession thereof, exclusive of the plaintiff, ever since. That said plaintiff maintained the possession of the land so deeded to his wife, claiming same, and not claiming any right or interest in the land now in dispute, which the plaintiff and defendant each believed bona fide belonged to defendant's wife, until the month of November or December, 1891, when the plaintiff discovered that the land in dispute, as well as his own forty, was public land and subject to homestead entry, but which fact was unknown to the defendant; and thereupon, without any notice to the defendant, and although the plaintiff was not residing upon and had never resided upon or improved the land now in dispute, and knew that the same was in the exclusive possession of the defendant, who had improved and claimed the same as his own, made application to enter the same, together with his own forty, under the homestead laws as aforesaid, and same was accepted December 10, 1891, and first receipt issued therefor. That subsequent to such entry, and before final proof was made, the defendant ascertained that plaintiff had entered said land, and the defendant thereupon informed plaintiff that he proposed to enter a contest for said forty acres upon which he resided, and the plaintiff thereupon assured defendant that he did not want defendant's land and home, and did not enter it for the purpose of depriving defendant of the same; that defendant might rest easy and satisfied, because he should never be deprived of the land; that he remembered that all four of the parties before named had gone together to purchase the 160 acres of land together, and that he did not intend to take advantage of defendant by depriving him of his forty after they had all supposed that defendant had a good title thereto; that, if a contest was entered for that forty, it might affect the plaintiff's right to consummate his entry to the other forty; that he would perfect his right to the whole eighty acres, and then convey to defendant his forty, the defendant to pay half of the expenses of obtaining a patent to the land. That said plaintiff further represented to the defendant that he should never be put to any trouble about his forty under the said entry; that he knew he had no moral or legal right to the land in dispute as against defendant, and that defendant should never be dispossessed of his forty, and that plaintiff would do right and tote fair with defendant; that the patent which he might obtain should never be used to dispossess the defendant; that at the time he entered the land he did not know it was the defendant's land, but supposed it was the land of Burton Hunter, aforesaid; that had he known that the land was that of defendant he would not have entered it; that it would be necessary for plaintiff and defendant to make quitclaim deeds back to the railroad company for the lands, and receive their money back; that he and defendant would do that, and the defendant could use the money obtained in that manner in paying his share of the expenses of perfecting said entry. That defendant, relying upon these false and fraudulent representations, executed back to the said railroad company a quitclaim upon the land in dispute, and the plaintiff also executed to said company a quitclaim for his forty, and the defendant, in consequence of said representations on the part of plaintiff as aforesaid, refrained from entering any contest for said forty of land, and the plaintiff never thereafter claimed any right or interest in said land until after procuring his patent for same, when he repudiated his said representations and demanded possession of said land, refusing to accept the sum of fifty dollars tendered him by the defendant long before the beginning of this suit, which sum was more than sufficient to pay one-half of the expenses of perfecting his said entry, which sum defendant is still willing and hereby offers and tenders into court to be paid to plaintiff for the purposes aforesaid. Defendant further alleges that at no time, either before or since the making of said homestead entry, has plaintiff resided upon or been in possession of any portion of the forty acres of...