Winn v. Strickland

Decision Date20 November 1894
Citation34 Fla. 610,16 So. 606
PartiesWINN et al. v. STRICKLAND.
CourtFlorida Supreme Court

Appeal from circuit court, Leon county; David S. Walker, Judge.

Bill by James N. Winn, as surviving executor, and others, against Gillum B. Strickland, seeking the cancellation of a deed given to defendant by a master in chancery at a sale under foreclosure proceedings. From a decree dismissing the bill complainants appeal. Affirmed.

Syllabus by the Court


1. It is essential that a complainant should be in possession in order to maintain a bill to remove a cloud upon the title to real estate, when not wild or uncultivated.

2. When a court of chancery has acquired jurisdiction over the person of a party in a proper case, it may, by virtue of its power to coerce obedience to its decrees, enforce the performance of contracts relating to land situated in another state. Such court, however, has no power to divest title to real estate situated in another state. In such cases the court acts upon the person of the holder of the legal title subject to its jurisdiction, and, if such holder fail to convey, by proper deed, the legal title, in obedience to a decree commanding it to be done, no effect can be given in the foreign jurisdiction to the decree, so far as a conveyance of the legal title is concerned.

3. It is essential that the court should acquire jurisdiction of the persons of the parties, and, if it proceed without such jurisdiction, either by the service of proper process or personal appearance, its judgments or decrees can have no binding effect.

4. A party to a suit over whom the court has acquired jurisdiction may be estopped by averments in pleadings filed by him.

5. A trustee in whom is vested the legal title, and who is chargeable with the proper care and preservation of the property, is a necessary party in all proceedings affecting the estate, where there is a remainder-man.

6. The possession of one cestui que trust will be regarded in law as the possession of a co-cestui que trust, as well as that of the trustee, in the absence of any clear and manifest hostility on the part of the occupying cestui que trust brought to the knowledge of the trustee and co-cestui que trust.

7. A tenant cannot dispute or gainsay the title of his landlord so long as it remains as it was at the time the tenancy commenced, and no fraud has been practiced in securing it yet it may be shown that the title under which the tenant has entered has expired, or has been extinguished by operation of law.

8. While the attornment of a tenant to a stranger may not alone operate as a disseisin of a landlord, yet, if possession be assumed by other acts besides the attornment, and the landlord has full knowledge of such change in the tenancy and of the possession in connection therewith, the latter may become adverse as to him.


John W. Malone, for appellants.

D. W. Gwynn and Fred. T. Myers, for appellee. Appellants filed a bill in the Leon circuit court, and alleged, in substance, that on the 10th day of May, 1859, Thomas B. Winn made and published his last will and testament in due form of law in Thomas county, Ga., and therein bequeathed to his wife, Elizabeth, for and during her natural life, a plantation situated in said county, known as the 'Home Place,' and the residue of his real estate the testator bequeathed to his children, or their legal representatives, to be equally divided among them under the limitations as follows, to wit: That Joseph S. Neely and James N. Winn were ordained trustees under the will for the daughters, to receive and control their distributive shares, free from the control of their husbands, should the daughters marry; and, should they die with children, then the trust property to vest absolutely in said children, but, if they should die childless, the trust property to revert to the testator's heirs at law. Further, the testator directed in his will that, if the said real estate should be sold for the purpose of division, then the proceeds should be equally divided among his children, and the trustees named should receive the distributive shares of the daughters realized from said sale, and invest the same for them in property to be held subject to the same trusts, and free from any marital rights that might accrue. That the testator died on the 18th day of December, 1859, without altering or revoking said will, seised and possessed of real estate situated in Thomas county, Ga., and certain described real estate situated in the county of Leon, in this state; and also left surviving him his wife, Elizabeth, and Harriet E. Winn, Mary C. Winn, daughters, and James N. Winn and Franklin J. Winn, sons, his only children.

The will is alleged to have been probated in due form of law in Thomas county, Ga., and letters testamentary issued to the said Joseph S. Neely and James N. Winn; a copy of the will and the probate thereof under the certificate of the clerk of the court of ordinary for the said county of Thomas being filed as an exhibit and part of the bill. That under and by virtue of the terms and limitations of said will an undivided one-fourth interest in said real estate was vested in each of the said James N. and Franklin J. Winn, and an undivided one-half interest vested in the said Joseph S. Neely and James N. Winn, as trustees for the said daughters, Harriet E. and Mary C. Winn, and that the said trustees accepted the trust imposed upon them by said will, and took possession and control of the estate of said daughters upon the death of the testator, and retained the same jointly until the death of Joseph S. Neely, which was during the year 1863, and the said James N. Winn, as surviving trustee, has retained the possession and control thereof.

It is alleged that Harriet E. Winn afterwards married James J. Blackshear, who afterwards died intestate, leaving his said wife and the following children, to wit, Emily E. Blackshear, James J. Blackshear, and Mary C. Blackshear; that the said Harriet E. Blackshear died after the death of her husband, leaving the said children, who thereupon, under the provisions of said will, became the owners in fee of an undivided one-fourth interest in and to the said lands situated in Leon county, Fla., and who still own the same; that the said Mary C. Winn, during the year 1867, married John H. Sloan, who afterwards died intestate, leaving his said wife and an infant daughter, I. H. Sloan.

It is also alleged: That James N. Winn, on the 6th of February, 1863, conveyed his undivided one-fourth interest in said land in Leon county to himself, as guardian of Franklin J. Winn, and as trustee aforesaid, under the limitations of said will, and retained possession of the same in accordance with the terms of said trust, the consideration for said conveyance being trust property bequeathed under said will to the said daughters. That by virtue of said conveyance Franklin J. Winn now owns in fee simple, and is in possession and control of, an undivided one-third interest in the said real estate; the said Emily E., James J., and Mary C. Blackshear now own in fee simple, and are in the control and possession of, an undivided one-third interest thereof; and James N. Winn, as trustee aforesaid, owns the legal estate and is in the possession and control of the remaining undivided interest in said property; but the said Mary C. Sloan, during her natural life, is entitled to the rents and profits arising from the interest possessed and controlled by the said James N. Winn, trustee.

It is further alleged that Mary C. Sloan, in the year 1885, without the consent or knowledge of complainants, mortgaged the said real estate, first to William M. Hammond, to secure $1,206.45, and afterwards to defendant, Gillum B. Strickland, to secure the sum of $2,000, and that the said Mary C. had no title to said lands, and no authority to execute said mortgages, and the said Hammond and Strickland, at the time of the execution of the same, had either actual or constructive notice thereof; that said Strickland, in April, 1887, filed a bill in chancery in the circuit court for Leon county against Mary C. Sloan, without making complainants parties, for the purpose of foreclosing his said mortgage, and that on the 18th day of June, 1889, a decree of foreclosure was granted, and on the 5th day of August following the said lands were sold under said decree, and Strickland became the purchaser thereof for the sum of $1,651.62, and received a deed of conveyance from a master, a copy of which is attached to the bill. The price paid for the lands at the master's sale, it is alleged, was inadequate, and that they were reasonably worth five dollars per acre; also that complainants, when said lands were offered for sale under said decree, gave public notice of their right and title to and possession of said lands.

It is also further alleged: That, while the said deed to Strickland is regular in form, it is void in fact, and that he acquired no title whatever in and to the said lands by virtue of said foreclosure sale and deed made thereunder; but that he insists that said deed is good, and conveys the title of the lands to him. However, he purposely refrains from bringing suit against complainants to test their title, and thereby clouds their title to said land. That Strickland, on divers occasions since the sale of said lands, has threatened to expel complainants' tenants from the lands, unless they would attorn to him, and, failing to influence them by such threats, has offered to lease said lands to said tenants for at least half the rental value thereof, thereby attempting covertly and fraudulently to possess himself without bringing an action to test the validity of his said deed and right of...

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