Smith v. Pattishall

• Decision Date: 16 March 1937
• Citation: 176 So. 568,129 Fla. 498
• Parties: SMITH v. PATTISHALL.
• Court: Florida Supreme Court

176 So. 568

129 Fla. 498

SMITH v. PATTISHALL.

Florida Supreme Court

March 16, 1937

On Rehearing November 4, 1937.

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Suit by W. A. Pattishall, as trustee under the last will and testament of Mary O. Beeman, deceased, against M. A. Smith as liquidator of the Orlando Bank & Trust Company. To review an order denying defendant's motion to strike plaintiff's replication, defendant brings error.

Reversed and remanded.

See also, 173 So. 355.

On Rehearing.

COUNSEL

Crawford & Gaskin and C. O. Andrews & Son, all of Orlando, for plaintiff in error.

W. A. Pattishall, of Orlando, for defendant in error.

OPINION

BROWN Justice.

Lester A. Beeman was the owner of a small but centrally located vacant lot, 20 feet wide north and south and about 78 feet long east and west, in the city of Orlando. A suit was pending against him by the liquidator of the Orlando Bank &amp Trust Company to recover some $15,000. On October 9, 1931, just seventeen days before judgment was recovered against him in said suit, Beeman undertook to convey the lot to his mother, Mrs. Mary O. Beeman, but the description in the deed was defective, and the deed only actually embraced and conveyed a narrow strip of this land about 78 feet long which comprised the south 1.29 feet of said lot, thus leaving the title in Lester Beeman to the north 18.71 feet of said lot. This error in description was not discovered until sometime later. So the lien of the judgment, which was rendered against Beeman seventeen days later, and the execution thereon, attached to the greater part of this lot the title to which had never passed out of Lester Beeman, and was clearly subject to execution and sale under the bank's judgment.

Shortly thereafter, the bank, or rather its liquidator, filed a suit in equity against Beeman and his mother's guardian to have the deed from Beeman to his mother declared fraudulent and void, on the ground that it was voluntarily made without consideration and in fraud of the bank's debt and subsequent judgment. This case was decided in favor of the defendant Beeman, and a final decree rendered upholding the validity of the deed as against the particular attack made upon it in that suit. But as the deed there involved did not embrace the north 18.71 feet of the lot, to which the lien of the bank's judgment had already attached, it would appear that the decree thus rendered did not estop the bank, or its liquidator, from seeking to subject said omitted property to the payment of its judgment, and subsequent to said judgment the sheriff levied upon the north 18 1/2 feet of the property thus omitted, without the bank's fault, from Beeman's deed to his mother.

Some time after this, Mrs. Beeman having died, the administrator c. t. a. of her estate filed his bill in the instant suit, praying that the description in the deed from Lester Beeman to his mother be reformed so as to embrace the approximately mately 18 1/2 feet which had so been levied upon, and obtained an order restraining the sheriff from proceeding further with the sale until the final disposition of the cause. The liquidator's motion to dismiss the bill was denied.

In an amended answer to said bill, the liquidator of the bank alleged the superiority of the bank's lien to the alleged right of the administrator to reformation; that the bank's lien was acquired without notice in so far as the land levied on was concerned; that the deed, though recorded, did not cover this 18 1/2 feet; that there had been no change in possession when the bank acquired its lien; and also by an amendment to paragraph 3 set up that the deed sought to be reformed was presumptively fraudulent, having been executed by Beeman to his mother while he was insolvent and while his debt to the bank was being reduced to judgment; that it was made voluntarily and without any consideration.

The amended answer also renewed the motion to dismiss the bill.

To this amendment to paragraph 3 of the answer, the plaintiff administrator filed a special replication setting up that this question was res judicata; that in the former suit hereinabove referred to, brought by the predecessor of the present liquidator against Beeman and his mother, the same allegations were made and the court was asked to declare that the said deed was without valuable consideration, voluntary, fraudulent, and void upon the same grounds, but that in that case a final decree upon the merits was rendered, denying the relief prayed for and dismissing the bill.

The defendant, the bank's liquidator, moved to strike the replication upon the grounds (1) that the deed involved in the former chancery case above referred to, and which deed is herein sought to be reformed, describes lands which are not covered or described in the bank's writ of execution sale under which is by plaintiff sought to be enjoined; (2) that the deed was in fact fraudulent for the reasons above stated; and (3) that the records of the former case, despite the decree rendered, show that said deed was voluntary and fraudulent, and the record of the testimony of Beeman in said suit was attached in support of this charge.

This motion to strike the plaintiff's replication was denied by the chancellor, and it is from this order that the present appeal was taken.

The second and third grounds of the motion to strike the replication may be disregarded, as they but reiterate in substance the allegations already made in the answer, and also seek to question the matter adjudicated in the former suit between the same parties, or their predecessors; but the motion should have been granted upon the first ground. The first ground of the motion had merit. It sought to show that the approximately 18 1/2 feet involved in this suit was not embraced in the former suit, and hence there was no 'identity in the thing sued for' in the two suits, so far as the 18 1/2 feet is concerned. The defendant below might just as well have admitted that the former suit between the parties settled the question, which it did, that, at least in so far as the property described in said deed was concerned, the deed from Beeman to his mother was not fraudulent or void, because the decree in that case adjudicated that question and it stands unreversed and in full force and effect. But, even if it be admitted that the deed was not fraudulent, this 18 1/2 foot strip was not included in that deed and not involved in that suit.

In Prall v. Prall, 58 Fla. 496, 50 So. 867, 870, 26 L.R.A.(N.S.) 577, it was said:

'Where the second suit is upon the same cause of action and between the same parties as the first, and final judgment in the first suit upon the merits is conclusive in the second suit as to every question that was presented or might have been presented and determined in the first suit. When the second suit is upon a different cause of action, but between the same parties as the first, the judgment in the first suit operates as an estoppel in the second suit only as to every point and question that was actually litigated and determined in the first, and the first judgment is not conclusive as to other matters that might have been, but were not, litigated or decided. The test of the identity of causes of action, for the purpose of determining the question of res adjudicata, is the identity of the facts essential to the maintenance of the actions. It is of the essence of estoppel by judgment that it be made certain that the precise facts were determined by the former judgment. If there is any uncertainty as to the matter formerly adjudicated, the burden of showing it with sufficient certainty by the record or extrinsically is upon the party who claims the benefit of the former judgment.' (Italics supplied.)

Even when the cause of action is the same, and between the same parties there must be also 'identity in the thing sued for.' Gray v. Gray, 91 Fla. 103, 107 So. 261, 262.

So as to this 18 1/2 feet, there is no res judicata.

The cause of action is not the same. The former suit was brought by the bank's liquidator to have the deed declared fraudulent and void, as a conveyance of the land therein described. In that case the burden of proof was upon him. In the present suit, brought by the administrator of the grantee in that deed, he seeks to enjoin the sale under execution of a strip of land not described in the said deed involved in the former suit, which strip has since been levied upon by the bank, and to which plaintiff administrator admittedly has no record title, but to which he seeks to acquire title, after levy, by means of the reformation of the deed made several years before so as to relate back to the time the deed was executed in 1931 and embrace within the deed the lands since levied upon under a valid judgment against the grantor in the deed, and thus defeat the effect of the judgment and levy, the validity of which is not questioned. In the instant suit, the burden of proof is upon the personal representative of the grantee to allege and show that in equity and good conscience, in view of all the facts and circumstances, he is entitled to the relief he seeks and, as a general rule, the burden would be upon the plaintiff in such cases to allege and prove that there was a valuable or meritorious consideration for the deed. Nor, as a general rule, will equity reform a contract or conveyance which is merely voluntary and based on no consideration, except with the consent of all parties. And where reformation is the only relief sought, a previous demand for the correction of the instrument is essential. 23 R.C.L. 345-347. Suffice it to say, however, that in this case the cause of action is not the same as in the former suit, and hence the...