Tyler v. Triesback

• Decision Date: 12 May 1915
• Citation: 69 So. 49,69 Fla. 595
• Parties: TYLER et al. v. TRIESBACK et al.
• Court: Florida Supreme Court

69 So. 49

69 Fla. 595

TYLER et al. v. TRIESBACK et al.

Florida Supreme Court

May 12, 1915

Rehearing Denied June 30, 1915.

Appeal from Circuit Court, Duval County; Daniel A. Simmons, Judge.

Bill by Richmond Tyler, as trustee, and others, against Margaret Triesback and others. From a decree for defendants complainants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

Where an appellate court has held upon a former appeal in a case that a deed from a mother to a son, upon the sole consideration of love and affection, will not be reformed in behalf of the son to the disinherison of other children equally entitled to her bounty, this becomes the law of the case, and upon a second appeal, after a careful consideration of the amendment to the bill and the other pleadings and all the evidence adduced, such court is still of the opinion that no facts or circumstances have been established which would warrant it in holding that the consideration for which such deed was executed was a valuable, as opposed to a mere good consideration, such appellate court will adhere to its former holding and refuse to interfere with the decree of the circuit court, denying a reformation of such deed.

Prior to the enactment of chapter 5145, Laws of 1903, forming section 2456 of the General Statutes of Florida, the word 'heirs' was indispensable to the conveyance of an estate of inheritance by deed. Trust deeds constitute no exception to the rule, unless it clearly appears that the duties of the trust require the trustee to possess the fee and the proofs establish the fact that it was the clear intention of the grantor that the grantee trustee should possess the fee.

An appellate court will not interfere with the action of the circuit court in granting affirmative relief to a defendant in an equity suit, in the absence of a cross-bill, when it clearly appears from the written stipulation filed by the respective parties litigant, which was made a matter of record by order of the court, that it was the intention of all such parties that the final decree should make a final disposition of all the matters involved.

Under the provisions of rule 18, Supreme Court Rules, adopted March 2, 1905 (page 11 of such rules prefixed to 51 Fla., 37 South viii), no objection will be allowed to be taken in the appellate court to the admissibility of any evidence, oral or documentary, found in the record in a chancery cause, unless the record affirmatively shows that the objection thereto was presented to the chancellor, and expressly ruled upon by him in the court below, at or before the final hearing of the cause. Every matter purporting to be evidence, found copied by the clerk into the record in such cause, will be presumed to have been used in evidence in the court below, unless the record affirmatively shows the contrary.

While a possibility of issue is always supposed to exist in law, unless extinguished by the death of the parties, where it appears from the evidence that the party who might have issue is 76 years of age, such possibility is rather remote, and where it is manifest, from the written stipulation filed by all the parties litigant, that all of such parties desired a termination of the litigation and a final settlement of all the matters in controversy, as appellate court will not reverse the final decree because of such remote contingency.

COUNSEL Axtell & Rinehart, of Jacksonville, for appellants.

Fletcher & Dodge and D. C. Campbell, all of Jacksonville, for appellees.

OPINION

SHACKLEFORD J.

This case comes here for the second time. See Triesback v. Tyler, 62 Fla. 580, 56 So. 947. As is established by the pleadings and the evidence, Margaret C. Tyler was seised in fee of lot 4 of section 1, township 22 south, range 26 east, situated in the county of Duval and containing about 62.33 acres, and on the 29th day of January, 1878, executed the following deed to Richmond Tyler, trustee:

'This indenture, made the twenty-ninth day of January, in the year of our Lord one thousand eight hundred and seventy-eight, between Margaret C. Tyler of the city of Jacksonville, county of Duval and state of Florida of the first part, and Richmond Tyler of the same county and state of the second part (in trust for his children Wilford Richmond and Edmund Marshall Tyler, and such other children as may hereafter be born to him, and until the youngest of them are of lawful age), witnesseth:

'That the said Margaret C. Tyler, as well for and in consideration of the love and affection which she has and bears toward the said Wilford Richmond and Edmund Marshall Tyler, children of the said Richmond Tyler, trustee, as aforesaid, as for one dollar lawful money of the United States to her in hand paid by the said Richmond Tyler (trustee as aforesaid for the cestui que trusts aforesaid) at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath given, granted, aliened, released, conveyed and confirmed, and by these presents doth give, grant, alien, release, convey and confirm unto the said Richmond Tyler, trustee for his children as aforesaid the undivided one-third of a certain lot, piece or parcel of land situate, lying and being in the county of Duval and state of Florida, known and distinguished by the government survey as lot number four (4) of section one (1) of township two (2) south of range twenty-six (26) east, containing twenty-one acres, more or less, and being the middle one-third of a tract of land conveyed by Charles Summers in his lifetime, to the said Margaret C. Tyler by deed bearing date twelfth day of March, 1857, recorded in the public, records of Duval county, in Book A, Property of Married Women, pages 376, 377 and 378, said land so conveyed by the said Charles Summers to the said Margaret C. Tyler being and lying in the shape of an oblong square, containing sixty-two and thirty-three one-hundredths of an acre and the land hereby conveyed to the said Richmond Tyler, trustee as aforesaid, being the middle one-third of the same, divided into three square lots as near as may be. Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, property, possession, claim and demand whatsoever of the said party of the first part, of, in and to the same, and every part and parcel thereof with their and every of their appurtenances. To have and to hold the said hereby described premises, and every part and parcel thereof with the appurtenances, unto the said party of the second part, trustee, as aforesaid for the use and benefits of the cestui que trusts aforementioned forever.

'In witness whereof, the said party of the first part has hereunto set her hand and seal the day and year first above written.

'Margaret C. Tyler. [Seal.]

'Signed, sealed and delivered in presence of:

'Jas. A. Marvin.

'Azor Marvin.'

We omit the acknowledgment and the indorsements. This deed was recorded in the public records of Duval county on the 18th day of April, 1904. On the 27th day of October, 1881, and the 17th day of May, 1883, Margaret C. Tyler executed two deeds, the first to Orville Z. Tyler and the second to Richard R. Tyler, by which she conveyed to each of such grantees a certain described lot, which two lots together embraced the southern one-third of lot 4, of which Margaret C. Tyler was seised in fee, as we have previously said, but with this southern one-third of such lot we have no especial concern. On the 1st day of May, 1882, Margaret C. Tyler executed a deed to Mary W. Shepard by which was conveyed one acre situated in the southeast corner of the northern one-third of such lot 4. On the 13th day of June, 1884, Margaret C. Tyler executed the following deed to Richmond Tyler, trustee:

'This indenture, made the thirteenth day of June in the year of our Lord one thousand eight hundred and eighty-four between Margaret C. Tyler, of the city of Jacksonville, county of Duval, and state of Florida of the first part, and Richmond Tyler of the same county and state of the second part, in trust for his children, Wilford Richmond and Edmund Marshall Tyler, and such other children as may hereafter be born to him (and until the youngest of them are of lawful age), witnesseth:

'That the said Margaret C. Tyler, party of the first part, as well for and in consideration of the love and affection which she has and bears toward the said Wilford Richmond and Edmund Marshall Tyler, children of the said Richmond Tyler, trustee as aforesaid, as for the sum of five dollars, lawful money of the United States to her in hand paid by the said Richmond Tyler, trustee as aforesaid, for the cestui que trusts aforesaid, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath given, granted, aliened, released, conveyed and confirmed and by these presents doth give, grant, alien, release, convey and confirm unto the said Richmond Tyler, trustee for his children as aforesaid, the undivided two-thirds, except one acre heretofore conveyed to Mary W. Sheppard in trust for her children, of a certain lot, piece or parcel of land situate, lying and being in the county of Duval and state of Florida, known and distinguished by the government survey as lot numbered four (4) of section one, township two (2) south, range twenty-six (26) east, containing forty-one (41) acres, more or less, and being the southern two-thirds, with the exception of the one acre heretofore conveyed to Mary W. Sheppard, as aforesaid, of a tract of land conveyed to Charles Summers in...