Watkins v. Watkins

• Decision Date: 13 March 1936
• Citation: 166 So. 577,123 Fla. 267
• Court: Florida Supreme Court
• Parties: WATKINS et al. v. WATKINS et al.

166 So. 577

123 Fla. 267

WATKINS et al. v. WATKINS et al.

Florida Supreme Court, Division A.

March 13, 1936

Suit by John Barr Watkins, Jr., by his next friend, and another against Lillian J. Watkins, individually and as executrix of the estate of Sue D. Barr, deceased, and another. Decree for complainants, and defendants appeal.

Affirmed. Appeal from Circuit Court, Alachua County; H L. Sebring, judge.

COUNSEL

Hampton Jordan & Lazonby, of Gainesville, for appellants.

Baxter Clayton & Watson, of Gainesville, for appellees.

OPINION

BROWN Justice.

The appellee (complainant in the lower court) filed a bill of complaint, seeking to re-establish a lost deed, and for an accounting.

The allegation of the bill is that on July 10, 1922, the complainant's father and mother, John Barr Watkins and Carrie B. Watkins, transferred by deed certain lands, in Alachua county, which had been owned by the family for a century, to the complainant's grandmother Sue D. Barr, as gobetween or trustee, and that she in turn conveyed to the complainant; that no consideration passed between the parties; that both deeds were identical, except as to the names of grantors and grantees, being drawn at the same time and executed on the same day; that the deed to the infant complainant had been lost or destroyed and was never recorded; that Lillian J. Watkins, one of the defendants, daughter and sole devisee of Sue D. Barr, later wrongfully deeded the said lands to the Ocala Manufacturing Ice & Packing Company, the appellant corporation, and therefore stands as trustee for the complainant and should account in full.

The testimony taken in behalf of the complainant tended to substantiate the theory of the bill. And the testimony of appellee's mother also tended to show that John Barr Watkins was in debt; that the transfers were made to preserve the property from the creditors of John Barr Watkins and to place the title thereto in his son, John Barr Watkins, Jr., then five years of age; that no consideration passed; that the deed from Sue D. Barr to John Barr Watkins, Jr., was delivered to Carrie B. Watkins and placed in her safety deposit box and that several years later she discovered that the deed had disappeared; that it cannot be found.

The answer of the defendants (appellants) admits the transfer from John Barr Watkins and Carrie B. Watkins to Sue D. Barr, and admits the transfer from Lillian J. Watkins to the Ocala Manufacturing Ice & Packing Company, but denies any transfer of the lands in question to the complainant, or any agreement to transfer, and denies all allegations of the bill of complaint tending to show Sue D. Barr as a trustee or go-between in favor of the complainant.

The defendants produced testimony tending to substantiate the answer, and produced further testimony tending to show that Mrs. Sue D. Barr, on July 10, 1922, loaned John Barr Watkins and his wife, Carrie B. Watkins, $15,000 and received a note signed by them in such amount and took as security the deed to the land involved in this suit; that Mrs. Sue D. Barr, before her death, went to Mr. Hampton, her attorney, and gave him the said note and instructed him to foreclose the deed to Mrs. Barr as a mortgage; that he, as instructed, drew the bill of complaint, but before suit was filed John Barr Watkins convinced both Mrs. Sue D. Barr and Mr. Hampton that it was useless to go to the expense of a foreclosure suit, as he (John Barr Watkins) felt that he could never repay the $15,000 and that his grandmother, Sue D. Barr could keep the deed; that the note was left in the Hampton firm safe until after the institution of this suit; that Mrs. Lillian J. Watkins and Mrs. Sue D. Barr, in her lifetime, paid the taxes on the property in question, although John Barr Watkins was in possession and using the place as his home; and finally that no deed was executed to John Barr Watkins, Jr., the complainant, as alleged in the bill of complaint.

Mrs. Carrie B. Watkins testified that she never gave Mrs. Sue D. Barr any note, and that although her name appeared as one of the makers, it was not her signature.

At the final hearing on bill, answer, and testimony, the chancellor excluded and refused to consider the testimony offered by the defendants below with regard to the $15,000 note and all testimony tending to show that a $15,000 consideration passed bwtween Sue D. Barr and John Barr Watkins and that the deed was given to Sue D. Barr as security therefor, and entered a final decree in favor of the complainant. Defendant Lillian J. Watkins, fourteen days after the decree was rendered, filed a motion to amend the answer, so as to add an allegation that the purported warranty deed was in fact a mortgage. This motion was denied.

In the order denying the motion to amend, the court states that said motion was interposed after petition for rehearing had been heard and denied.

This is a suit to establish a title already vested in the complainant as distinguished from one in which a reconveyance is sought. In Kahn v. Wilkins, 36 Fla. 428, 18 So. 584, this court held that a conveyance between a fraudulent grantor and grantee is good as between the parties and vests title in the grantee, except as to those persons actually defrauded. In the case before us no creditor is involved and none complain. As between the parties here involved, none can be heard to complain that the transfer from John Barr Watkins and Carrie Watkins to Sue D. Barr and the alleged conveyance by Sue D. Barr to John Barr Watkins, Jr., was in fraud of creditors.

In Miller et al. v. Berry, 78 Fla. 98, 82 So. 764, this court held that: 'The maxim, 'He who comes into equity must come with clean hands,' does not apply to wrongs committed at large by those who resort to equity for relief, but is confined to misconduct in the matter in litigation, and must concern the opposite party.' And in the able opinion in that case, which was written by Circuit Judge Reaves, it was said: 'A court of equity is not an avenger of wrongs committed at large by these who resort to it for relief, however careful it may be to withhold its approval from those which are involved in the subject-matter of the suit, and which prejudicially affect the rights of one against whom relief is sought.'

The appellee was only five years of age at the time of the transaction. As a general rule, estoppel cannot arise against an infant. In 31 C.J. 1005, it is aptly said: 'If an estoppel can arise against an infant, all the elements of an estoppel must concur. The conduct of the infant must have been fraudulent, and believed in, relied on, and acted upon by the other party.' These elements could certainly not have been attributed to this infant, nor is laches imputable to an infant. 10 Ency. Pl. Pr. 590.

This suit was not instituted to determine whether the instrument given to Sue D. Barr was a mortgage or a deed, but is a suit to establish a subsequent or contemporaneous deed by Sue D. Barr to the infant appellee.

The appellants contend that the introduction of the note and the evidence thereof was to rebut the complainant's allegation that no consideration passed, and was therefore admissible. If this evidence thus sought to be introduced would show that consideration actually apssed for the deed from John Barr Watkins and wife to Sue D. Barr, it would be admissible to disprove the complainant's allegation that no consideration passed. But the evident purpose for which this evidence was offered was to show, not that there was a consideration for the deed, but something entirely different that is, that there was in law no deed, but in fact a mortgage; and there was no predicate in the defendant's pleading for such a showing. The answer admitted the execution of the deed to Sue D. Barr, as alleged in paragraph 1 of the bill of complaint, and nowhere alleged that it was given to secure a debt, or that it was in legal effect a mortgage. So the chancellor should not be held to have...