Volume 10 — Florida Reports

<p>1. Equity will relieve against a contract where the party complaining was greatly embarrassed, and the opposite party availed himself of that embarrassment to force a settlement favorable to himself.</p> <p>2. An anssver responsive to the bill denying the allegations therein, is conclusive upon that question, unless overcome by the testimony of two witnesses, or of one, with corroborating circumstances.</p> <p>3. It is well settled that a suppression of truth, or suggestion of what is not true, in some material point, will be ground for setting aside any contract. Again, concealment of a material fact by a party to a contract is ground for relief, where he had better opportunity to know than the other; but where the facts lie equally open to the vendor and vendee, with equal opportunity of examination, and the vendee undertakes to examine for himself without relying upon the vendor’s statements, it is no evidence of fraud that the vendor knew facts not known to the vendee, and does not make them known to him.</p> <p>i, A misrepresentation by a vendor to be ground for a reeision of the contract, must be in reference to some material thing unknown to the vendee, either from not having examined or from want of opportunity i o"be informed, or from entire confidence reposed in the vendor, and his remedy must be pursued in good time after the injury is discovered.</p> <p>5. If a partner who exclusively superintends tin business and accounts of the concern, should, by concealment of tlic true state of tito accounts and business, sell his share of the assets of the firm to a co-pal’thor for a disproportionate price, by means of such concealment, the purchase will be held void.</p> <p>6. The qualifications suited to eases of extraordinary nature to these general rules, as laid down in White vs. Walker, 5 Florida, 470, considered and affirmed.</p> <p>7. It is a well established principle in equity that nothing but what is plainly injurious to good faith ought to be considered as a fl-aud sufficient to impeach a contract.</p> <p>8. If a partner continue to trade with the joint property after dissolution of tlie partnership, he must account for the profits, and if it was continued by express or implied consent alter tlie period fixed by the articles of agreement, iu such case the stipulations of the original will be considered those of the continuing partnership, and it is then a partnership at will.</p> <p>D. The mere fact that an agreement is improvident, is no ground for setting it aside; it can only be avoided because of surprise, or mistake, want of freedom, undue iniluence, the suggestion of falsehood or the suppression of truth.</p> <p>10. Before a dissolution, partners are joint tenants of the partnership property, each of them having- an interest iu the entire possession, as well as of every parcel as of tlie whole, and without suivivorship, each paituer embracing the character of both principal and agent. After a dissolution, each partner becomes a trustee for the others as to the partnership funds in his hands, in order to effect a lair settlement and just retribution of the effects.</p> <p>11. In cases of mutual mistake, going to the essence of the contract, equity will often relieve, however innocent the parties may be, by correcting the error.</p>

By an act of the Congress of the United States, March, 1845, certain lands were granted to the State of Florida to he applied to objects of Internal improvement within the State, to wit: roads, railways, bridges, canals, improvement of water courses and draining of swamps.

<p>1. Parol evidence will be allowed to show that a deed or other instrument absolute on its face was intended to operate as a mortgage or simple security, but such allowance is limited within the restriction that it must show some ground for equitable interference, such as fraud, accident, mistake, &c., in the execution of the instrument.</p> <p>2. The reformation of a deed absolute on its face into a mortgage or simple security, stands on the same footing as that of the reformation of any other instrument — it forms no exception in equity jurisdiction, and is subject to the same rules of evidence that are applied to other cases cognizable in that Court.</p> <p>3. The act of January 30th, 1838, entitled an act to amend an act to regulate the foreclosure of mortgages (Thomp. Dig. 376,) is not an enlarging statute, but was only intended to restrict the operative force and effect of certain classes of written instruments therein mentioned. The case of McGriee, Adm’r, vs. Porter et al. 5 Fla. R. R., 433, referred to and approved.</p> <p>4. As matter of evidence there exists a radical difference between the matter of opinion and that of impression as used in the books. The former is predicated upon the existence of a fact, the latter is only a deduction drawn from the assumption of that fact.</p> <p>5. Where it is sought to reform a deed absolute on its face, into a mortgage or security, the burdeq of proof is upon the party seeking the reformation.</p> <p>6. Where two witnesses are equally credible in their statement of a fact, credit is to be given to the testimony of him who has thebest means of information.</p> <p>7. The after declaration of a grantor will be admitted to support, but never to contravene, the legitimate foree and effect of the deed,</p> <p>8. Mere inadequacy of price or other inequality in the bargain will not per se constitute a ground in equity to avoid the contract; there mustbe some other ingredient in the caso of a suspicious character, such as the peculiar relation of the parties, imbecility, <fcc., from which the presumption of fraud would naturally arise.</p> <p>9. It is an essential ingredient to constitute a mortgage that both the right to foreclose and the right to redeem should exist; they are correlative and in separable.</p>

<p>This case was decided at Tallahassee.</p>

<p>1. When it is specified in a covenant that it shall bo performed. “ in a short and reasonable time,” what is a short and reasonable time is a question of law for the .Court, and in determining it, the Court will consider all the facts and circumstances of the case. In this ease, seventeen months considered a reasonable time for performance of the covenant.</p> <p>.2. When there is a clear right, and the remedy in a Court of law is not plain, .adequate, complete, and adapted to the particular exigency of the case, then, and in such eases, Courts of equity will maintain'jurisdiction.</p> <p>'8. It is too late to insist the complainant has a perfect remedy aflaw, after the defendant has answered a bill and submitted himself to the jurisdiction of the Court without objection, unless the Court is wholly incompetent to grant the relief sought by the bill.</p> <p>4. The statute of Florida clothes foreign Executors and Administrators with authority to bring suits, but does not authorize them to defend them.</p> <p>.5. The joinder of an improper party defendant does not affect the jurisdiction of the Court as to the parties before it.</p> <p>fi. If a bill is defective in form, it should be demurred to : it is too late to take that objection before an appellate Court.</p>

<p>1. It is a settled rule of practice, tliat if uncertainty occurs in any of the pleadings of a party, they will be most strictly construed against him whose pleadings they are.</p> <p>2. Where, in an action of covenant, the plaintiff avers in his declaration full performance on his part, and that is the issue to he tried, it is improperfor the Judge so to instruct the Jury as to raise the question of excuse for non-performance by the plaintiff'.</p> <p>3. But to warrant the Appellate Court to reverse the judgement for such erroneous instruction, the Court must be satisfied that the jury was misled, and were thereby influenced to render a verdict which they would not otherwise have given.</p> <p>4. If upon a consideration of the whole case, the Appellate Court shall conclude that substantial justice has been done between the parties and that the Jiuy might and ought from the facts to have come to the conclusion that they did, the verdict will not be disturbed.</p> <p>5. The Statute of Florida dispenses with proof of the execution of the instrument sued on, unless the plea denying the execution be verified by the oath of the party; but this provision of the Statute has never been taken to dispense with the necessity of exhibiting the instrument to the Jury as evidence in the cause.</p> <p>6. Where the bill of exception does not show that the instrument sued upon was exhibited to the Jury, but it does show that the defendant asked and obtained an instruction predicated upon the presence and exhibition of the instrument, it will be presumed that it was duly offered in evidence, and he is estopped from denying the tact, or of predicating error thereon.</p>

<p>1. If a cow be found in the possession of a defendant with her brand altered from that of her owner to that of the defendant, and the calf of said cow be found in the pen of defendant, in the mark and brand of defendant, in the absence of satisfactory explanation on his part, the jury may find him guilty of having fraudulently altered the brand of said cow, with intent to claim the same in violation of the 12th section of the Act of February 12th, 1832, and the Supreme Court will not hold it error in the Circuit Court to refuse to set aside a verdict founded on such testimony.</p> <p>2. It is a well settled principle, that if a man be found in possession of stolen property, the law will presume him to be the thief in the absence of satisfactory explanation.</p> <p>3. It is the duty of the jury to weigh all the evidence, and to give to the defendant the bene,it of every reison.ible doubt. It is their duty, under their oaths to give to the whole testimony the most serious consideration ; but it is their right to reject all such portions of it as they may believe to be untrue. It is their peculiar province to judge of the credibility of witnesses.</p> <p>4. To alter the brand of an animal, “with intent to claim ' he same,” in violation of our statute, it is not necessary that the brand formerly upon the animal should be obliterated or defaced, but only that in addition to t.he old brand the accused should put his own brand upon it “ with intent to claim the same.’*</p>

<p>1. When a party pays the costs and files his .appeal bond, but takes no further steps towards prosecuting his appeal, and thereby causes considerable delay to the plaintiff in the collection of his judgment, it is a case where damages may be given as for a frivolous appeal.</p> <p>While the Supreme Court should be always open to receive and entertain causes diligently prosecuted before it for the purpose of justice, it should be very careful not to permit itself, even unintentionally, by a party, to be made the instrument of useless delay.</p>

Tbis case was decided at Tallahassee. At a term held in January, 1862, the Supreme Court delivered an opinion in the case of The Trustees of the Internal Improvement Fund vs. William Bailey, affirming the decree of the Circuit Court. A petition for a rebearing of tbe case was filed at the same term of tbe Court by tbe counsel for appellants, which was refused.

The Court having declared itself competent to bear the motion pending in this cause for docketing and rehearing the same according to the act of the Legislature, the next question submitted for consideration was the constitutionality of the act directing this application for a rehearing.

<p>1. The common law and statute fixipg dower, by its own silent operation, raises a provision for the wife in the event of.her surviving her husband, in- ■ dependent of, and without reference to, the agreement of the parties; consequently, the right of the wife to dower is not derived through the husband, but by provision of law. ' It is an interest which the law casts upon the wife.</p> <p>S. Our statute hgving extended dower to personal estate, the wife has the same inchoate title ip personal property that she has in real; excepting-in personal estate, it is not provided she shall have it in that whioh the husband “ had before conveyed,” as inlands.</p> <p>3. The husband cannot, by last will and testament, so bequeath his personal property as to deprive his widow of her right of dower therein; yet he may sell, or give his personal property away, even although it is with the avowed purpose of keeÍDing his wife from getting her dower; but such sale or gift must be a bona fide one and perfected,</p> <p>i. If the conveyance or transfer by the husband be a mere device or contrivance by which the husband, not parting with the absolute dominion over the property during his life, seeks at his death to deny his widow her dower in his personal estate which the law would assign to her, then it is void and ineffectual against her.</p> <p>5. JTraud is never presumed but always proved. Yet it is well established, that fraud may be inferred from facts and circumstances ; from the character of the contract or from the condition and circumstances of the parties — such as whether the grantor keeps the bill of sale, or he retains possession of the-goods or any part of them, and whether he parts with the absolute, dominion over the property'during life, and the use he seeks to make of it, &c.</p>

<p>Appeal from Madison Circuit Court.</p> <p>This case was decided at Tallahassee.</p> <p>A full statement of the case is contained in the opinion of the Court.-</p>

<p>1. The statute law of Morida invests the Court of Chancery with exclusive jurisdiction over matters of divorce, and, as incidental to that jurisdiction, the power to allow alimony in all cases where a divorce is decreed.</p> <p>2. The 10th paragraph of the 3d section of the Act (Thomp. Dig., 223) is to he considered as supererogatory, and as imposing no restriction upon the power of the Court of Chancery to decree alimony in proper oases where a decree of divorce is pronounced.</p> <p>3. The 14th and 15th paragraphs of section 3d do hot apply to cases of divorce, and are applicable alone to cases where there is desertion by the husband or temporary separation of the parties.</p> <p>4. Where there was great conflict of evidence with reference to the value of the ■respective incomes of husband and wife, the appellate tribunal will not interfere to control the discretion.-exercised by the Chancellor in the allotment of alimony, unless it is manifest that some egregious error has been committed.</p> <p>5. Where the wife is in the ehjoyment of an income from her separate estate,the Chancellor may deny an application for maintainanoejpmdenfe lite, and for expenses of the suit; although, upon the final hearing, he may decree an 'amount for permanent alimony in addition to the income from her separate estate.</p>

<p>In this ease the prayer of the hill being that a promissory note., on which judgment had been obtained, might ho decreed to have been without consideration, and that the judgment he enjoined, it was error only to direct the Master to take an account between the maker of the note and the payee. Tlie Court should first have determined the validity of the items composing the consideration of the note, and then have instructed the Master, in stating the account, which to admit and which to reject.</p>

<p>When a Cause is taken by writ of error or appeal to an appellate tribunal and reversed and remanded for further proceedings, the Circuit Court may ordef a default for want of a plea to be opened, and give the parties leave to plead ; and a refusal to do so, in a proper ease; will be error. In opening defaults,the Circuit Court has the right to impose reasonable terms and conditions; When a default is opened on condition that certain depositions, though irregularly taken, shall be read on the trial, it means on any and every trial that nmy take place, till the case bo finally disposed of. Whether a default should be opened, must depend on all the facts and circumstances connected with the case. If the party be guilty of gross negligence, the default will not be opened.</p> <p>The negligence of the attorney is the negligence of the party; but before the . Court closes its door against a party for the negligence of the’ attorney, it ought to be satisfied that the negligence of the attorney has been such as to enable the client to maintain an action against him, else the client will be without remedy. It is the office of a bill of exceptions to place facts upon the record which would not otherwise appear there. A bill of exceptions should contain all the facts connected with the question which the party seeks to have revised by the appellate Court.</p>