Brown v. Solary
Brown v. Solary
Opinion of the Court
The grounds of the demurrer that were sustained involved only formal defects that were supplied at the hearing of the demurrer. The alleged defect as to the prima facie sufficiency of the tax deed extended only ■to the absence of a seal on the copy filed with the bill, and this was simply a clerical oversight in the clerk in •not affixing the seal to the copy. The other grounds of the demurrer were considered and expressly overruled, with leave to demurrants to answer or plead to the bill. The amendment of the-mere formal defects having been made on the hearing of the demurrer,' the objection to the bill on their account was then removed, and defendants are entitled to have the adverse ruling of the court on the other grounds reviewed without demurring again after the amendment was made. The first and second grounds overruled question the right of complainants to any relief in equity on the allegations of their bill. In connection with these two-grounds we consider the seventh, that the bill does not sufficiently allege possession of the land on the part of complainants.
The case made for complainants, briefly stated, is that they were seized in fee of the land in question; that one Tompkins acquired a pretended tax deed to it, and, claiming thereunder, conveyed by quit claim deed an undivided half interest to one McMurtry; that Tompkins and McMurtry conveyed that portion of the
If the basis for a resort to equity rested solely upon the ground of removing the tax deed as a cloud on1 complainants’ title, the possession alleged would probably not be sufficient. The allegation is that com
It is also insisted that there is a misjoinder of parties, in this, that the defendants Brown, Agnew, Gillen, Baldwin, the Marion Phosphate Company, and the Silver Springs, Ocala & Gulf Railroad Company
The only other ground of the demurrer demanding notice is, that Tompkins and McMurtry are necessary parties. The former was the grantee in the tax deed, and after quit-claiming a half interest in the land to the latter, they conveyed their entire joint interests to the respective parties named. No fraud is charged against Tompkins and McMurtry, or either of them;
The plea was overruled, and it is claimed that the-court erred in this ruling. In determining the sufficiency of the plea we must accept every fact stated in the bill, and not denied by the plea, as true, and the-facts stated in the plea as true. Wilson vs. Fridenburg, 19 Fla. 461. It is not questioned that this is the correct rule. The pleas allege that complainants were in possession at the time of filing the bill, and that neither of the defendants was in possession. It is also alleged that defendants were not at the time of filing-the bill mining the land, that phosphate was not then being taken therefrom in great quantities, or in any quantity, that defendants, or either of them, were not then committing great and irreparable injury, or any injury whatever, to the land, or that the land was then-being injured continuously or otherwise. The statements of the bill not in conflict with the foregoing allegations must be considered as true. The invalidity of the tax deed is conceded, and also that defendants, with the design of defrauding and injuring complainants, had entered the land, under color of said tax deed, and dug and carried away phosphate in great quantities and value, the exact value of -which could not be ascertained without an accounting. The plea shows such possession in complainants- as to authorize the court to cancel the void tax deed, but the bill is defective, as we have seen, in pot sufficiently alleging possession, and according to strict rule complainants-
Reference
- Full Case Name
- C. M. Brown v. Antonio Solary et ux.
- Cited By
- 33 cases
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- Published
- Syllabus
- 1. The basis for equitable interference in the -removal of a cloud from the title to real estate is that a deed or other instrument,, apparently valid, but void in fact, may be vexatiously ’or injuriously used against the rightful owner, after the evidence to invalidate it has been lost, and the owner being in possession, can not immediately protect his right by any legal proceeding. In such case a court of equity will grant relief and direct the deed or instrument to be delivered up and cancelled. 2. A court of equity grants relief by injunction against a trespass-on real estate when the threatened injury can not be adequately compensated in damages at law, or where under the circumstances of the case injured party has no adequate remedy at law. The foundation for the jurisdiction in such cases is, in general, the irreparable nature of the injury, the inadequacy of pecuniary compensation, the destruction of the estate in the character in which it has been enjoyed, or the prevention of a multiplicity of suits. 3. The question of title and possession enter into the consideration in cases of trespass as well as when an instrument is sought to be removed as a cloud upon title, and in cases of trespass the complainant’s title must be admitted, or legally established,, and the nature of the injury must be irreparable. The decision in the case of Woodford vs. Alexander, 35 Fla. 333, 17' South. Rep. 658, is disapproved. The application of the law to the facts of that case was erroneous, and the decision should not be followed. 4. The mining and taking of phosphate rock from the soil of land valuable chiefly on account of the phosphate amounts to a destruction of the estate in the character in which it has been enjoyed, and the injury resulting therefrom is of such an irreparable nature as to authorize a court of equity to enjoin it on proper bill by the real owner. 5. When a court of equity has, by virtue of its original or concurrent jurisdiction, cognizance of a case for one purpose, it wilL proceed to a complete adjudication of the entire case, even to the settlement of purely legal rights which otherwise would be-beyond the scope of its powers. 6. Where a court of equity has acquired jurisdiction to enjoin a tresspass in digging and taking phosphate from the soil of land, it also has the authority to decree an account of the phosphate already taken from the soil and the damages resulting from the trespass. 7. A bill is not multifarious^on the ground of a joinder of two separate and distinct causes of action when an injunction, within the jurisdiction of the court to grant, is asked for, and also an account of the damages resulting from the act sought to be enjoined is prayed. 8. A bill is not multifarious on account of the joinder of parties defendant where the object of the suit is single, and there is one general point in issue rendering the interest common to all the defendants. 9. Where the object of the suit is single, and it is shown that some of the defendants have interests in distinct questions growing out of the suit, such defendants are necessary parties in order to conclude the entire matter. 10. T, acquired a tax title to land and conveyed an undivided half interest to M.; T. and M. subsequently conveyed their entire interest in one part of the land to S., S. and P., and their entire interest in the other part to B.; a bill was filed by the true owner of the land against S., S., P., B. and others alleging that the tax deed was void for specified reasons, and praying an injunction and account against B. and the other defendants who had entered upon the land under color of the void tax deed and committed an irreparable injury: Held, That T. and M , who had parted with their entire interest in the land, who were in no way shown to be connected with the trespass on the land, and against whom no fraud was charged, or relief asked, were not necessary parties. 11. In determining the sufficiency of a plea, every fact stated in the bill and not denied by the plea must be taken as true, and the facts stated in the plea must be considered as true. 12. To a bill filed by the owners in fee of land, alleging that the defendants, with design to defraud and injure complainants, had entered upon the land under color of a void tax deed, and had committed irreparable injury by digging and taking from the soil phosphate of great value and quantity, the exact value o^ which could not be ascertained without an accounting, and praying for an injunction and account of the phosphate dug; a plea was interposed alleging simply that defendants were not committing the trespass and injury alleged at the time the bill was filed: Held, That the plea was no sufficient answer to the bill, and was rightfully overruled.