Stokely v. Conner

• Decision Date: 26 June 1920
• Citation: 80 Fla. 89,85 So. 678
• Parties: STOKELY et al. v. CONNER et al.
• Court: Florida Supreme Court

85 So. 678

80 Fla. 89

STOKELY et al. v. CONNER et al.

Florida Supreme Court

June 26, 1920

Appeal from Circuit Court, St. Johns County; George Couper Gibbs Judge.

Suit by Mary B. Conner and others against Hattie N. Stokely and others. Motion to strike the answer of certain defendants was overruled, but exceptions thereto sustained, and defendants appeal. Reversed.

Syllabus by the Court

SYLLABUS

Matters not wholly irrelevant and immaterial should not be expunged from an answer in chancery, either upon motion or upon exception for impertinence.

No alienee, grantee, assignee, or mortgagee is bound or affected by a judgment or decree in a suit commenced by or against the alienor, grantor, assignor, or mortgagor, subsequent to the alienation, grant, assignment or mortgage, to which he is not a party.

The decree determining the rights and interests of the parties in a partition suit is not the final decree.

A new party defendant in a partition suit, brought in after the entry of a decree determining the rights and interests in the property of the respective parties then before the court, may set up matters of defense previously pleaded by his grantor who was an original defendant, when it appears that the conveyance was made prior to the commencement of the action though not recorded until after the action was begun; no special circumstances being shown to preclude such defense.

Where a new pleading between the original parties is confined strictly to supplemental matter, the answer thereto should likewise be confined to such supplemental matter; but where a new party, who is shown to have had an interest in the subject-matter of the suit before the suit was instituted, is brought into a cause, he has s substantial right to be heard upon all matters which materially affect his property interest.

COUNSEL Butler & Boyer, of Jacksonville, for appellants.

W. W Dewhurst, of St. Augustine, for appellees.

OPINION

REAVES, Circuit Judge.

This is the second appearance of this case in this court. The opinion in the former appeal sets out the bill and decree of partition in full, and reference is hereby made to said opinion for an extended statement of the case as it then stood. Stokely v. Conner, 69 Fla. 412, 68 So. 452.

After the former appeal, complainants filed a petition in the circuit court for leave to file a supplemental bill, assigning as a reason therefor that, after the mandate had gone down from this court, and after commissioners had been appointed and had filed their report, and exceptions had been filed thereto by the defendants,

'discovery was made of the filing in the public office for recording deeds in St. Johns county of a deed of conveyance of the lands sought to be partitioned by the defendant Harry M. Stokely to one Lewis Shepard, Jr., dated A. D. 1905, but not filed for record until the 27th day of May, A. D. 1914. Wherefore your petitioners are advised that it is necessary to bring the said Lewis Shepard, Jr., and his wife, named Edna N. Shepard, before this court as parties to this suit.'

An order was made granting this petition, whereupon a supplemental bill was filed against the Stokelys (except Harry M., who was dismissed by order of the chancellor), and also against the new parties, viz. Shepard and his wife. Shepard is shown to be a resident of the state of Missouri, and the court ordered that an order of publication be made against him and his wife, and that they be thereby brought 'before the court to answer said supplemental bill.'

The subject-matter of the suit is the partition of a tract of land in St. Johns county known as the Miranda grant. The complainants claim that the property in question was originally granted to one Pedro Miranda, who deeded a one-half undivided interest to Joseph S. Sanchez; that the interest of Sanchez was subsequently sold under execution to one Conner, the ancestor of the complainants, and under whom the complainants claim a one-half undivided interest; and the remaining one-half undivided interest was deeded by Pedro Miranda to his daughter, Rufina Miranda, who intermarried with one Bisbee, by whom she had several children, and from these children, as the heirs at law of their mother, the said Rufina Bisbee, the Shepards obtained title to and now own a one-half undivided interest. The Shepards, on the other hand, claim that the description of the land deeded by Miranda to Sanchez did not include any part of the Miranda grant, but covered other lands; that the said Miranda conveyed a one-half undivided interest to his daughter Rufina, and died seized of the other one-half interest, which passed to his said daughter as his sole heir at law, and that the deeds from the Bisbee heirs conveyed to Hattie N. Stokely the whole of said property, and not merely an undivided one-half interest therein, as alleged by complainants. One of the Stokelys also set up some claim under a tax deed, and it was likewise claimed that the title of the Stokelys had been made secure by adverse possession. All these claims were decided against the Stokelys in the decree of partition, which decree was affirmed by this court. The new defendants under the supplemental bill, viz. Shepard and his wife, answered, not only the supplemental matter, but the original bill, and set up in their answer the same defenses which the Stokelys had previously set up, and which had been determined against them, and the counsel for complainant moved to strike all that part of their answer which related to the subject-matter of the original bill, and also excepted to the same portion of the answer, claiming it to be impertinent. The chancellor overruled the motion to strike, but sustained the exceptions, and the cause is now before this court upon an appeal from that order.

No point is made in the argument as to whether this answer was properly attacked by motion or by exception, and we shall not discuss that question of practice; but, unless the matter expunged was wholly irrelevant and immaterial, it was improperly stricken upon motion or exception. Ferro Concrete Co. v. Federal Terra Cotta Co., 84 So. 171; Busch v. Baker, 83 So. 704; Law v. Taylor, 63 Fla. 487, 58 So. 844.

The point we must decide, then, is whether the matter expunged from Shepard's answer was material or pertinent to his defense. The answer to this question depends upon whether Shepard, being brought into the case at the stage of the proceeding heretofore stated, had the right to raise by his answer, and to be heard before the court upon the same questions which had been raised by Stokely, his grantor, and decided against Stokely.

The Stokely-Shepard deed was made long before the bill was filed, but recorded long after the bill was filed. If this deed had been recorded before the bill was filed, and if this action had been prosecuted to a final decree without making Shepard a party, it is clear that his rights would not have been affected by the action.

'No alienee, grantee, assignee, or mortgagee is bound or affected by a judgment or decree in a suit commenced by or against the alienor, grantor, assignor, or mortgagor, subsequent to the alienation, grant, assignment, or mortgage, to which he is not a party.' Logan v. Stieff, 36 Fla. 473, 18 So. 762; Austin v. Hoxsie, 44 Fla. 199, 32 So. 878; Reddick v. Meffert, 32 Fla. 409, 13 So. 894; Henderson v. Chaires, 25 Fla. 26, 6 So. 164.

If this rule is not to apply in this case, it must be because (1) Stokely failed to record his deed until after the action was begun; or (2) because he was brought into the cause as a party before the final decree. The decree determining the rights and interests of the parties in a partition suit is not the final decree, notwithstanding it finds and fixes the equities of the respective parties. Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 722, 111 Am. St. Rep. 77.

From the brief of counsel for appellees we quote as follows:

'Shepard is...