Willey v. W.J. Hoggson Corp.
Decision Date | 17 October 1925 |
Citation | 106 So. 408,90 Fla. 343 |
Parties | WILLEY et al. v. W. J. HOGGSON CORPORATION |
Court | Florida Supreme Court |
Suit by George F. Willey and others, individually and as trustees under a trust agreement of the Ponce de Leon Beach Associates against the W. H. Hoggson Corporation and others. From a decree sustaining a demurrer to complainants' amended bill, they appeal.
Appeal dismissed.
See also, 105 So. 126.
Syllabus by the Court
An agreement between two or more persons, joint owners or owners in common of real and personal properties, or of either character of property, by which one or more of such persons are designated as so-called 'trustees' for themselves and their associates, to manage, sell, dispose of, reinvest and otherwise trade in or with such fund, which consists of such common properties, constitutes a partnership or joint stock company, in which the members who possess contractual capacity are severally liable, and all are necessary parties to any litigation growing out of such agreement and affecting such properties.
No person can be both trustee and cestui que trust of property at the same time.
The phrase, 'common-law trust,' so far as the same may be created in this state by agreement, has reference to the method of its creation rather than to the powers, duties, and liabilities of the so-called trustees and cestuis que trustent.
Where parties having a joint interest in the subject-matter of litigation are not properly before the court on appeal, the appeal will be dismissed.
Appeal from Circuit Court, St. Johns County; George Couper Gibbs judge.
David R. Dunham, of St. Augustine, P. L. Gaskins, E. J. L'Engle, J. W. Shands, and O. O. McCollum, all of Jacksonville, for appellants.
Kay, Adams & Ragland, of Jacksonville, for appellees.
The appellants exhibited their amended bill in the circuit court of St. Johns county against the above-named defendants. They and Chesleigh H. Briscoe demurred to the bill; the St. Augustine Beach & Toll Bridge Company being named in the demurrer as 'St. Augustine North Beach & Toll Bridge Company.' Chesleigh H. Briscoe was not named as a defendant either in the original or amended bill.
On July 3, 1924, the chancellor sustained the demurrer to the amended bill.
On July 16, 1924, the complainants filed their notice of entry of appeal, which was recorded the same day in the 'minutes of said court in Chancery Order Book.' Chesleigh H. Briscoe was named as one of the parties defendant.
On July 21, 1924, the defendants moved to dismiss the bill and discharge the lis pendens which had been filed.
On July 19, 1924, the chancellor granted the motion. It thus appears from the record that the order dismissing the bill was made two days before the motion was made and five days after the entry of notice of appeal and record of same. It is not contended by either party, however, that there was any irregularity in fact in the order.
On November 26, 1924, George Oberdorfer submitted his petition that the appeal be dismissed as to him individually or as trustee. The grounds set forth in the petition were, in substance, that he had been induced, through the fraudulent representations of Willey and A. Rowden George, to become a trustee of the Ponce de Leon Beach Associates, and he desired a dismissal of the cause so far as he was concerned as appellant in order that the wrong, if any, committed through him upon the appellees might be remedied.
Notice was given to the parties through their counsel of the filing of such petition.
On December 2, 1924, appellees moved to quash the appeal upon several grounds, the substance of which was that the appeal was taken for delay; that it was not taken in good faith; that the appeal was an abuse of the court's process, and was taken by George F. Willey and A. Rowden George for the purpose of forcing concessions from W. J. Hoggson and St. Augustine North Beach & Toll Bridge Company by hindering the construction of a bridge across North river in the city of St. Augustine.
No action has been taken by this court upon that motion, because a proper consideration of it necessitated a determination of the cause upon its merits in advance of the determination of other causes pending in this court, which in the order of their submission were entitled to prior consideration.
On December 5, 1924, Louis H. McKee, one of the appellants, withdrew from the appeal and requested its dismissal as to himself individually and as trustee.
On January 26, 1925, a motion by appellees was made in this court to dismiss the appeal 'for present want of indispensable parties appellant.' The motion contained a statement in explanation of the ground, which averred that Louis H. McKee did not join in the appeal, and, since he had learned that his name was used as one of the appellants, he had in his own proper person moved to dismiss the appeal as to himself, individually or as trustee; and that there was a petition before the court in behalf of George Oberdorfer asking for a dismissal of the appeal as to himself individually and as trustee.
On February 11, 1925, the appellees moved to dismiss the appeal upon the ground that subsequently to the entry of the appeal from the order sustaining the demurrer to the amended bill of complaint the chancellor made an order dismissing the bill; that no appeal had been taken from such final decree, and the time for doing so had expired. Also, that, as Louis H. McKee was an indispensable party complainant, and did not join in the appeal, the order sustaining the demurrer to the bill and the final decree dismissing the same had become final and absolute as to him, and the time had expired in which the entry of appeal could be amended, and an order of severance as to McKee procured.
This motion was considered by this court and disposed of adversely to movants upon that phase of it which presented the proposition that, in the absence of a supersedeas, the lower court had power to order a dismissal of the cause after an appeal to this court, and thus deprive this court of jurisdiction to hear and determine the questions presented by the appeal. See George F. Willey et al. v. W. J. Hoggson Corporation et al. (Fla.) 105 So. 126, decided January term, A. D. 1925.
Upon request of counsel for appellees, however, the court heard oral arguments in July upon the motion filed January 26, 1925, to dismiss the appeal upon the ground of 'present want of indispensable parties appellant.'
A proper consideration of this motion requires a statement of the subject-matter of the litigation, the causes which gave rise to it, and the interests of the parties in relation to it.
We will make the statement as concise as we can in view of the voluminous record and many motions and briefs which have been filed in the cause.
In 1919 a corporation, known as the Ponce de Leon Fountain of Youth Company--Fred L. Hall, owner of 997 shares of its capital stock, which was approximately its entire issue--was the owner of certain lands near St. Augustine upon which was located a spring with which, according to local legend, the name of Ponce de Leon was associated in 1513.
Hall and W. J. Hoggson conceived the plan of acquiring such lands and others adjacent thereto, build a toll bridge across North river to the mainland, and otherwise develop the property.
The Fountain of Youth Hotel Company, a Delaware corporation, was organized in furtherance of such plan. Its stock was issued to Fred L. Hall, E. L. Barnett, Inc., W. J. Hoggson, and Chesleigh H. Briscoe, Hall receiving 1,500 shares in consideration of his stock in the Ponce de Leon Company, E. L. Barnett, Inc., 500 shares in consideration of the cancellation of claims which it had against the company, and W. J. Hoggson and Chesleigh H. Briscoe each 1,000 shares.
W. J. Hoggson Corporation is a New York corporation; so is the E. L. Barnett, Inc. W. J. Hoggson is president and a director of both and the owner of a majority of the stock in each.
In 1922, the Hotel Company had acquired the lands and franchises desired, and the 997 shares of stock of the Ponce de Leon Company. The Hotel Company then entered into an agreement with the W. J. Hoggson Corporation for the construction, by the latter for the former, of bridges and roadways and other improvements. The price agreed upon was $175,000.
W. Tyler Browne is an employee of W. J. Hoggson and the corporation of that name, Chesleigh H. Briscoe is vice president of the corporation, and Goold T. Butler, an employee, also vice president of the Hotel Company. So it is alleged.
In order to provide funds with which to pay for the construction work, and primarily for the purpose of securing the payment of moneys that would become due to the W. J. Hoggson Corporation for the construction work, the Hotel Company executed a deed of trust to the People's Bank for Savings of St. Augustine to secure the payment of $300,000 of 8 per cent. 'seven-year cumulative real estate participation certificates.' The instrument was dated May 1, 1922, and constituted a lien upon all the properties of the Hotel Company, including the 997 shares of Stock in the Ponce de Leon Company. The certificates were to be executed by the company and issued by the trustee according to the terms set out in the instrument.
It was provided that Fred L. Hall should receive $7,000 in cash and $8,000 in certificates in satisfaction of all 'outstanding mortgages, liens, and claims against the property'; E. L. Barnett, Inc., should receive $35,000 in certificates in satisfaction of its claims against the property; W. J. Hoggson Corporation should receive $25,000 as a final payment on its contract; Goold T. Butler $2,000...
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