Thomas v. Goodbread

• Decision Date: 06 August 1919
• Citation: 82 So. 835,78 Fla. 278
• Parties: THOMAS v. GOODBREAD.
• Court: Florida Supreme Court

82 So. 835

78 Fla. 278

THOMAS v. GOODBREAD.

Florida Supreme Court

August 6, 1919

Error to Circuit Court, Columbia County; M. F. Horne, Judge.

Ejectment by Mrs. Nettie Goodbread, for the use of S. C. Cole, against H. R. Thomas. Verdict and judgment for plaintiff, and defendant brings error. Reversed and remanded for a new trial.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

Under section 1522, General Statutes of Florida, judgments and decrees of the circuit courts of this state, and certified copies thereof, are admissible as prima facie evidence of the entry and validity of such judgments and decrees.

Defects in writs of execution do not vitiate sales, unless they are such as render the writs void, and are not amendable.

A variation between the amount of a judgment and the execution issued thereon does not avoid the sale thereunder, where such variation is an apparent clerical error, and does not harm the defendant, and the judgment is so described in the execution as to clearly identify it.

A mortgagee of land, who acquires legal title in consequence of a sale under execution against the mortgagor in favor of a third party, will be held to hold such legal title in trust for the mortgagor, when it appears that the mortgagee promised the mortgagor orally to buy the land for his benefit, and to convey the same to the mortgagor upon payment by him of the purchase price with agreed interest; it also appearing that the mortgagor refrained from further protecting the property from sale, and that the mortgagee acquired the title at a grossly inadequate price.

Where one buys land at a judicial sale under a parol agreement to purchase for another, and fails to convey according to the agreement, a constructive trust arises, where the promisee owned the estate, and the purchase was agreed to be made for his benefit.

Equitable estoppels are proper defenses in actions of ejectment in this state, and evidence of such estoppels is admissible under the plea of not guilty.

One who acquires legal title to land under such circumstances as to create a constructive trust in favor of another is estopped from asserting such legal title for the purpose of dispossessing such other person, who held possession at the time such legal title was acquired.

COUNSEL J. B. Hodges, of Lake City, for plaintiff in error.

A. B. &amp C. C. Small and Guy Gillen, all of Lake City, for defendant in error.

OPINION

REAVES Circuit Judge.

Mrs Nettie Goodbread, for the use of S. C. Cole, sued H. R Thomas in the circuit court of Columbia county in an action of ejectment, and from the verdict and judgment in favor of the plaintiff the defendant sued out a writ of error from this court.

In disposing of the assignments of error we shall group them with reference to kindred questions, rather than discuss them numerically.

The plaintiff undertook to prove title by showing that judgment was recovered by one A. S. Goodbread, the husband of Mrs. Nettie Goodbread, against the defendant, Thomas; that the property involved in this suit was sold under an execution issued upon said judgment, and conveyed by the sheriff to Mrs. Nettie Goodbread, the wife of the plaintiff in execution, and subsequently conveyed by her to the usee, S. C. Cole. Error is assigned upon the admission in evidence of a certified copy of the judgment, without also offering enough of the judgment record to show that the court had jurisdiction, and counsel cites in support of his contention Donald v. McKinnon, 17 Fla. 746, and McGehee v. Wilkins, 31 Fla. 83, 12 So. 228. But since these cases were decided judgments and decrees of the circuit courts of this state and certified copies thereof have been made admissible as prima facie evidence of the entry and validity of such judgments and decrees by express provision of statute. See section 1522, General Statutes, 1906, being section 1, chapter 4723, Acts of 1899. Under this statute a certified copy of the judgment was properly admitted, and it devolved upon the other party to impeach its validity, if he could do so; the statute making the judgment prima facie evidence only.

The third assignment of error questions the propriety of admitting in evidence the execution under which the property was sold. The objections are: (1) That there is a fatal variance between the judgment and the execution, in that the judgment is for $139.10, and the execution for $129.10; and (2) that it was not shown that the execution offered was the execution issued on the offered judgment.

That the execution was for $10 less than the judgment clearly did not harm the defendant, and did not render the sale void. It was at most an amendable defect. Adams v. Higgins, 23 Fla. 13, 1 So. 321.

The second ground of the objection is also untenable. The execution describes the judgment by its date, the court in which obtained, the names of the parties to the cause, etc., with absolute accuracy, except as to amount, and in the absence of a showing to the contrary we must presume that the slight difference in amount was due to a clerical error, and would not affect the sheriff's deed to property sold thereunder. McKinnon v. Lewis, 64 Fla. 378, 60 So. 223.

What we have said disposes of the objections to the introduction in evidence of the deeds from the sheriff to Goodbread and from Goodbread to Cole, which constitute the basis of the fourth and fifth assignments of error. This brings us to consider together the first, sixth, seventh, eighth, ninth, and tenth assignments of error, which raise the question of whether or not the defendant should have been allowed to defend on the ground that Cole, who then held a mortgage given by defendant on the land in question, with other lands, promised the defendant orally that he would buy the property at the execution sale for defendant, hold it for his benefit, and reconvey to him upon the payment of the purchase price, with 10 per cent. interest; that defendant relied upon Cole to protect him as stated; that Cole, instead of buying at the sheriff's sale, let Goodbread buy in the property, and then bought from Goodbread at the price of $100, the property being worth about $1,400, telling defendant that he worked it that way because he could get the property cheaper; and that defendant thereafter offered to pay Cole the purchase price, with 10 per cent. interest, which Cole refused to accept, putting the defendant off at the time upon some pretext, and finally disavowed the alleged oral contract, and claimed the property as his own.

This defense was first tendered in the form of a plea on equitable grounds, but the court denied the application for leave to file the plea. Then at the trial the testimony was offered under the plea of not guilty, and objected to 'because it has been shown that the alleged agreement was oral or verbal, and not in writing, and that it is not pertaining to any interest or alleged interest in the land in controversy.' This objection was sustained by the trial judge, who then, upon motion of counsel for plaintiff, directed a verdict for the plaintiff. This state of the record presents for our determination two questions: (1) Assuming the proffered testimony to be true (which the jury alone had the power to determine), did it constitute a legal defense? If so, then (2) was such testimony admissible under the plea of not guilty, or should a special plea on equitable grounds have been interposed?

Discussing these points in the order named, it seems necessary to determine in what relation Cole stood toward the defendant under the facts stated, and in what legal category the transaction should be placed. On behalf of the defendant it is argued that the relation was purely that of principal and agent, and that the statute of frauds, therefore, has no application, and in support of this contention we are cited to but one authority, namely, Schmidt v. Beiseker, 14 N.D. 587, 105 N.W. 1102, 5 L. R. A. (N. S.) 123, 116 Am. St. Rep. 706.

Counsel for plaintiff, on the other hand, argues that the case is one of vendor and purchaser, inasmuch as Cole agreed to buy the land in his own name at his own cost and resell to defendant; or counsel further suggests, if the arrangement did not create the relation of vendor and purchaser in the ordinary sense of those terms, it did create a parol declaration of trust, inasmuch as Cole was to hold title for defendant, and in either case it is argued that the proffered testimony is precluded by the statute of frauds, which not only applies to the sale of land, or any interest in land, but also applies to the creation of a trust in land. Sections 2448, 2452, and 2453, General Statutes 1906, Compiled Laws 1914.

We are unable to agree with the theory advanced by either counsel. On the contrary, we think the transaction constitutes Cole a trustee of a constructive trust, to which the statute of frauds has no application, but which is expressly excepted by the verbiage of the statute. Section 2452, General Statutes 1906, Compiled Laws 1914; Boswell v. Cunningham, 32 Fla. 277, 13 So. 354, 21 L. R. A. 54. While we are not favored by the citation of any Florida case in the brief of either counsel on the point in question, we think the determining principles of this case have been fully settled by this court in the cases which we shall now consider.

In the case of Boswell v. Cunningham, supra, it appears that Boswell & Rose, being engaged in the business of real estate agents were employed by Carrie H. Cunningham to purchase for her a designated piece of property; that said agents negotiated the purchase at a given price, which was approved by their principal, who paid $100 towards the purchase price, and immediately left the state of Florida...