Weed v. Knox

• Decision Date: 04 October 1946
• Citation: 27 So.2d 419,157 Fla. 896
• Parties: WEED v. KNOX.
• Court: Florida Supreme Court

27 So.2d 419

157 Fla. 896

WEED v. KNOX.

Florida Supreme Court

October 4, 1946

Rehearing Denied Oct. 22, 1946.

Appeal from Circuit Court, Orange County; Frank A Smith, judge.

G. P Garrett, of Orlando, for appellant.

Akerman Dial & Akerman, of Orlando, for appellee.

BROWN, Justice.

This is an appeal by the plaintiff in the court below from an order granting a motion of the defendant to dismiss plaintiff's bill.

The bill alleges that Walter A. Weed, widower, and the father of the plaintiff Nell Weed and the defendant Jesse W. Knox, being the owner in fee simple of certain described real estate, executed and delivered to his daughters the plaintiff and defendant, a special warranty deed conveying certain described real estate to his said daughters, reserving however to the grantor therein a life estate in and to said property and every part thereof. This deed was made on December 11, 1943. On December 7, 1945, this appellant filed said bill of complaint against her sister praying that the court decree a partition of said property according to their respective shares, interests or proportions therein, and to that end that the court appoint commissioners to make partition of the premises, and upon the report of the commissioners being filed that the court subject to the right of either party to file objections and exceptions thereto, enter a final decree which would vest in the respective parties a title to the several parcels or portions of the property allowed to them, respectively, and give to each of the parties to said suit the possession of and quiet title to, their respective shares against the other party to the suit or those claiming through or under them. The bill further prayed that if the commissioners should report that partition could not be made without prejudice to the owners, and the court should approve such report, that the court should order the property to be sold at public auction to the highest bidder and the proceeds divided among the respective parties in proportion to their shares, etc.

The owner of the life estate, Walter A. Weed, was not made a party to the suit.

The defendant Jesse W. Knox filed a motion to dismiss the bill upon several grounds: (1) The bill contains no equity; (2) the bill shows a non-joinder of interested parties; (3) the bill does not allege sufficient title in the plaintiff to bring the suit, and (4) it does not allege sufficient facts to show that the plaintiff is entitled to bring the suit under the statutes of this State.

When this motion came on to be heard, the chancellor below granted the motion and dismissed the bill.

Our statute, Sec. 66.03, F.S.A., provides that a bill may be filed by any one or more of several joint tenants, tenants in common or coparceners, against their cotenants, coparceners or others interested in the lands to be divided.

Counsel for appellant very frankly recognizes the general rule that only those in possession, or having the right to immediate possession, are entitled to partition, and that in the absence of statutory authorization by remaindermen, remaindermen are not entitled to partition among themselves during the existence of the particular estate in possession unless there is statutory authorization therefor. However, counsel for appellant contends that our statute above quoted, is sufficient authorization for such a suit as this because, as appellant contends, the plaintiff and the defendant in this case are shown by the facts alleged in the bill to have been either tenants in common or coparceners. Appellant contends that remaindermen holding remainders subject to a life estate have unity of the right of possession taking effect when the life tenant dies, and that remaindermen, in their relation with each other, are governed by the principles governing cotenants, citing 33 Am.Jur. 643. However, immediately following this statement in section 176 on page 643 there follows a sentence which shows that the provision stated in the preceding sentence applies to situations entirely different from that with which we are dealing in this case. And in the very next paragraph, sec. 177 on page 643, 33 Am.Jur. the following language appears:

'A remainderman has no right of possession until the particular estate is terminated. He has no right of action, which depends upon the right of possession, until he is entitled to the possession, either to recover the possession or to obtain compensation for injuries to the possession. Hence, he cannot, before the termination of the life or other particular estate, maintain an action of ejectment, of trespass, of trover, or for partition, except where there are special statutory provisions permitting him to do so. The remainderman may, however, have his remedy in the courts if his interest in the estate is threatened or damaged. Thus, one who has a vested remainder in land has a right to protect the estate so that he may receive the same when it ought to come to him by the terms of the limitation, and he may maintain a proper action for any injury to the inheritance, committed or threatened, whether by the tenant in possession or by a stranger. In the case of a trespass which causes permanent injury to the inheritance, the remainderman may maintain an action of trespass on the case if the trespass was by a stranger, and, if it was by the owner of the particular estate, he can maintain an action of waste or an action in the nature of waste.'

Appellant also cites the case of Serkissian v. Newman, 85 Fla. 388 96 So. 378, 380, wherein it was said that 'Tenants in common may have partition subject to the dowry...