Volume 35 — Florida Reports

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts of the case are stated in the opinion of the court.</p>

<p>This is a case of original jurisdiction — Mandamus-</p> <p>The facts of the case are stated in the opinion of the court.</p>

<p>1. Under our Constitution and statutes it is not an exercise of extra territorial jurisdiction for a judge of one circuit to hear and determine, in accordance with Section 1078 of the Revised Statutes of Florida, a demurrer in a common law case pending in another circuit, but in which the judge of such other circuit is unable or disqualified to act.</p> <p>2. The act of a judge of one circuit in making such an order as may be made in vacation or between terms, in a cause pending in-another circuit, hut in which the. judge of said circuit is legally or physically incapacitated to act, is not a transfer of the case ■ from the circuit in which it is pending to the circuit of the ■ judge who makes the order.</p> <p>3. Section 1078 of the Revised Statutes of Florida is not in conflict with the State Constitution of 1885. Because the Constitution points out several modes of obtaining a trial in common law cases, which are usually had in term, it does not follow that the Legislature is prohibited from conferring jurisdiction for the disposition of matters pending before a disqualified judge which can he disposed of in vacation or between terms. The Constitution and the statute are entirely consistent with each' other. ■</p>

<p>Appeal from the Circuit Court for Leon county.</p> <p>The facts in the case are stated in the opinion of the' court.</p>

<p>1. Under Circuit Court Rules in Equity No. 61, such courts have power upon motion, notice and cause shown, to permit amendments to be made to answers to bills in chancery, although such amendments may qualify or alter the original statements.</p> <p>S. A trustee who is a party to a trust deed, who has accepted the trust, acted under the deed, taken possession of the property, the grantor raising no objection, can not for his own benefit surrender the trust deed and take a deed in his own name to the same property, to the injury of his cestuis que trust</p> <p>3. A trustee who is a party to a trust deed, who has accepted the trust created by said deed with a knowledge of the consideration upon which the same was made, andby virtue of the same . has taken and held possession of the trust property for a long period of years, in acquiescence to the provisions thereof, is, when a suit is brought against him to establish the trust and require him to account for the trust property, estopped from maintaining as a defense to said suit that the trust deed was. executed upon an illegal consideration, or that it was defectively executed.</p> <p>4. If a party having the right to repudiate or affirm a transaction, affirms it, he can not afterwards resort to his right of repudiation. Impeachable transactions may be rendered valid by act of confirmation or acquiescence for a great length of time.</p> <p>5. A trustee must assume the validity of the trust under which he acts until it is actually impeached. His duty is to manage the interests of his cestui que trust, and not to keep his conscience or betray his title or interest, and he can make no admissions prejudicial to the interests of his cestui que trust.</p> <p>6. It is the duty of a party discovering a fraud to take immediate steps for a rescisión of his contract. By his ratification of the acts of which he complains, and to which he was a willing party, he is forever estopped from setting up such defense.</p> <p>7. A trustee who has accepted and entered upon the administration of a trust can not allege the invalidity of his appointment as a defense for not accounting for the trust property.</p> <p>8. A trust deed was defectively executed — not being under seal. The grantor recognized the deed as valid and binding upon him, and as vesting a good title in the trustee, who. for a period of time longer than necessary to create a prescriptive title, remained in possession of the trust property: Held, That the trustee was not justifiable in surrendering the-property or the-written evidences of title thereto, to the grantor.</p> <p>9. A trustee in the care and management of the trust estate is held to at least such degree of care, judgment and discretion as a man of ordinary prudence and capacity would exercise with regard to his own property.</p> <p>10. Where a trustee has four cestuisque trust, one of whom is sui juris, and the others infants, the infants are not bound or concluded by any transaction between the trustee and the cestui que tmst who is of age.</p> <p>11. A trustee holds as much for llie benefit and protection of those entitled to the estate in remainder, as of those to whom the immediate beneficial enjoyment is given.</p> <p>12. The duties and obligations of trustees in the care and skill with which they should perform the duties assumed by them, prevent them from taking advantage of blunders and mistakes which they themselves have made, and which have misled their cesttiis que trust.</p> <p>1:1. The law looks with extreme jealousy upon all purchases of the trust estate by the trustee. Such purchases are always voidable upon proper proceedings taken by the cestui que trust.</p> <p>14. One cestui que trust has no power to give away or dispose of the rights of another.</p> <p>15. A trustee should not purchase the trust estate from his cestui que trust. The law regards with a jealous eye all transactions between persons occupying these confidential relations. As a general rule, a court of equity will avoid the contract altogether without proof of fraud, and will never sustain it except where the trustee clearly proves the fairness of such transaction, and that it was advantageous to the cestui que trust.</p> <p>16. A transaction between trustee and cestui que trust will not be sustained if the trustee has taken advantage of any information received by him in such capacity, nor if the cestui que trust entered into the transaction in ignorance of his legal rights.</p> <p>17. If a cestui que trust seeks to avoid a deed of the trust estate made by her to her trustee, she must account for any money received by her as a consideration for such deed.</p> <p>18. Innocent purchasers for yalue of the trust property, without any notice or knowledge of the trust, can not be held liable therefor.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appeal from the Circuit Court for Orange county.</p> <p>The facts of the case are stated in the opinion of the-Court.</p>

Statement of facts applicable to the assignments of •error. Moses Joseph brought an action of assumpsit against J. L. Reddiek and Daniel J. Williams, as late partners under the firm name and style of Reddick & Williams, in the Circuit Court of Washington county, Florida, on the 13th day of February, 1888. Pleas were filed by defendant J. L. Reddick and issue joined thereon.

<p>1. The general rule in equity is that all persons materially inte rested, either legally or beneficially, in the subject-matter of a suit must be made parties either as complainants or defendants, so that a complete decree may be made binding upon all parties.</p> <p>3. The court can not adjudicate directly upon the rights of necessary and indispensable parties without having them actually or constructively before it, and the failure to raise the objection of the absence of such parties by demurrer or answer is not a waiver of the right to make such objection before final decree, or even on appeal.</p>

STATEMENT. Suit was instituted by appellant in the Circuit Court against appellee, a railroad company, to recover damages for injuries received on account of the alleged negligence of an employe of the company.

<p>Appeal from the Circuit Court for Marion county.</p> <p>STATEMENT.</p> <p>Adam Rives, the appellee, on the first day of April,. A. D. 1887, filed his bill against William Edwards in the Circuit Court for Marion county, in chancery, and therein prayed for the specific performance of a contract for the sale of real estate, alleged to have been entered into between him and William Edwards. It was alleged in the bill that about the month of November, 1874, William Edwards did contract to sell and did sell to Adam Rives that certain parcel of land situated in the county of Marion, in the State of Florida, and particularly described as being the W. ½ of the N. W. ¼ of Sec. 4, in T. 12 S., R. 20 E., containing eighty acres, at the stipulated price of five dollars per acre, or an aggregated sum of four hundred dollars, and did at the same time put him in possession as the vendee and owner thereof; and as such vendee and owner he has ever since been continuously and now is in the actual occupancy and possession of said tract of land and resides thereon with his family, and has made valuable improvements of various kinds thereon. At the time of the sale of this tract of land, William Edwards made and delivered to Adam Rives a written memorandum of agreement to sell and convey said land to him; the provisions of which writing were, that William Edwards agreed and bound himself to execute and deliver to Adam Rives good and perfect titles to said tract of land, so soon as William Edwards could perfect his own title thereto, the legal title thereto being at the time in another party, and upon the payment to William Edwards by Adam Rives of the price of five dollars per acre. By some unavoidable accident Adam Rives has lost this written memorandum, so that it is not now in his custody, possession or control. Adam Rives has fully paid to William Edwards at various times in cotton, corn and other goods and chattels, and in work and labor performed for him at various times, at his request, and at stipulated prices, the stipulated price for said land, and even more; yet William Edwards has neglected, failed and refused to convey said land to Adam Rives.</p> <p>William Edwards filed his answer to said bill on the 29th of April, A. D. 1887, and therein admitted that Adam Rives had been in possession of the land in controversy since November, 1874, but alleged that he was in possession thereof as a tenant, and not as a purchaser. He denied the making of the contract as stated in the bill. A general replication to this answer was filed on the 6th of June, A. D. 1887.</p> <p>William Edwards was afterwards adjudged a lunatic, and Julia A. Edwards was by consent of counsel appointed his guardian ad litem on the 6th of March, A. D. 1888. Afterwards William Edwards died testate, and Julia A. Edwards, who was the executrix of his last will and testament, was made a defendant to said suit, with the consent of counsel, on the first day of April, A. D. 1889.</p> <p>The cause was afterwards heard, and a final decree for the specific performance of the alleged contract was rendered therein by the chancellor on the 28th of •June, A. X). 1890. Whereupon Julia A. Edwards, as -executrix, etc., appealed to this court and assigned the granting of- this decree for error.</p>

<p>1. In decreeing the foreclosure of a mortgage providing for the payment of a reasonable attorney fee in the event of foreclosure, it is error to allow a sum of money as such fee without proof that it is reasonable and a proper amount to allow.</p> <p>2. In order that the sworn answer of a respondent may have the effect of being evidence in his favor, and conclusive unless overcome by the testimony of two witnesses, or of one witness corroborated by other circumstances which add greater weight than the answer, it must be directly and positively responsive to the material allegations of the bill.</p> <p>3. A sworn answer, with proper averments, setting up a want or failure of consideration, in analogy to the rule at law, as to the effect of a sworn plea under the statute alleging such defense, will have the effect to impose the burden of proof as to such defense on the complainant; but in order to have such effect the answer should be direct, positive and free from uncertainty.</p>

<p>Appeal from the Circuit Court for Alachua county.</p> <p>The facts of the case are stated in the opinion of the •Court.</p>

<p>1. Duress may consist of’one’s goods as well as of his person.</p> <p>2. Duress of goods may exist when one is compelled to submit to an illegal exaction in order to obtain his goods from one who has them, but refuses to surrender them unless the exaction is endured. "</p> <p>3. Legal duress implies that a party has been unlawfully constrained by another to perform an act under circumstances which prevent the exercise of free will. The act of the party compelling the unwilling obedience of another must be unlawful or wrong. ful, and there can be no duress of goods in law where the act done or threatened is nothing more than what the party had a legal right to do.</p>

<p>Appeal from the Circuit Court for Alachua county.</p> <p>STATEMENT.</p> <p>Appellants filed a bill in chancery in the Duval Circuit Court against appellees, the substantial allegations-of which are, that I. D. I-Iart, deceased, was in his life-time seized and possessed of certain described real estate situated in the city of Jacksonville, Florida, water lot 27 and one-half of water lot 28, being a part thereof, and about the 5th day of May, 1857, bargained and. sold said real estate to the Florida, Atlantic & Gulf Central Railroad Company, and in consideration therefor said company transferred and delivered to Hart stock in the said company to the amount-of $10,-000. That $6,000 of said stock was for and in consideration of water lot 27 and one-half of water lot 28, and the remaining $4,000 of stock was in payment of the other portion of said real estate, all of which will appear by reference to the books and records of said railroad company. That said Hart accepted said stock in full payment of said real estate, and at the time of its receptions delivered possession of said real estate to the said company, and thereupon the company entered and continued in the use and occupation of the same. That in June, 1857, said railroad company sold and conveyed to William A. Forward and James A. Patten said real estate together with all other lands owned by it, in trust to secure the payment of certain bonds issued July 1st, 1857, and known as the free land bonds of said company; and that by said trust deed the company not only conveyed the real estate therein described to said trustees and their successors, but also the road-bed, depots, stations, locomotives and equipments of said company, subject to a prior lien created as hereinafter stated, by an act of the Legislature, in favor of the Internal Improvement Fund. That said trust deed or mortgage was duly recorded in the clerk’s office for Duval county on the-3rd day of February, 1858, a copy of which was attached as exhibit “A.” That I. D. Hart departed this life in 1861, five years after he sold and delivered! posession of the said real estate mentioned as sold by him to said company, and that during said time he-was one of the directors of said company, and at all times after said transfer recognized the title of the-company to said lan ds, and acquiesced in the conveyance-of the same in trust as aforesaid. It is alleged that both Patten and Forward had died, and that Green II. Hunter and Louis I. Fleming had been duly appointed to act in their stead in the further execution of the trust; that after its organization, and prior to the execution of - the said trust deed, said railroad company accepted, the provisions of the act of the Legislature to encourage a liberal system of internal improvements in this-. State, approved January 6th, 1855, and obtained the-endorsement by the Trustees of the Internal Improvement Fund of certain bonds of said company issued originally and pursuant to said act, and that by the-provisions of said act a first lien was created upon the road-bed, iron, workshops, depots and franchises of said company to secure the payment of said bonds, and among other things it was further provided in said act that upon failure of any railroad company accepting its provisions to pay the interest on said bonds and the annual sinking fund of one per cent, that the-Trustees of the Internal Improvement Fund should-have the power to sell said roads. That said trustees, in pursuance of the power conferred on them did seize and sell the said Florida, Atlantic & Gulf Central Railroad, its depots, workshops, and franchises, and that the same were struck off and sold to William E. Jackson and associates for the sum of $111,000; that said J ackson and his associates, by act of the Legislature approved J uly 29, 1868, were incorporated and made a body corporate as the Florida Central Railroad Company, and became vested with all the powers and franchises of the Florida, Atlantic & Gulf Central Railroad Company. That said Florida Central Railroad Company, pursuant to said sale, entered into possession of said railroad, and 'at the same time took possession of said real estate sold by I. I). Hart, and now refuses to restore possession of the same to complainants, and pretends and claims that it acquired title to said lots of land by virtue of said sale as appurtenant to the said Florida, Atlantic & Gulf Central Railroad; whereas, complainants allege that the lien ■created by the said Internal Improvement Act extended only to the road-bed, iron, depots, workshops, equipments and franchises of said Florida, Atlantic & Gulf Central Railroad, and that the said lots in Jacksonville sold to said company by I. D. Hart were not subject to said lien, but that said lots were acquired from said Hart subsequent to the creation of said lien by complainants in trust free and discharged from any encumbrances whatever, and that the Florida Central Railroad Company, by virtue of the sale by the trustees, acquired no greater or other interest in and to .said lots than the Florida, Atlantic & Gulf Central Railroad Company had at the time of said sale. That a large part of said lands having been previously sold and conveyed by complainants and their predecessors in pursuance of said trust and the bonds secured by said trust deed having become due, and being unpaid, and a large proportion of the interest coupons thereto attached being also unpaid, complainants on the 26th day of August, 1873, filed a bill in this court to enforce said trust, and praying .an order of sale of said trust lands for the payment of the amounts found to be due' thereon. That on the 5th day of May, 1874, a special master was appointed to sell said lands, and in pursuance of said order said master sold the greater part of said trust lauds and made report to the court, but that the said lots in Jacksonville could not be sold,, although several times offered at public sale, for the reason stated, to-wit: the cloud over the title to same on account of claims set up to said lots by other parties in possession. That on the 23rd day of March, complainants commenced suits in ejectment against the Florida Central Railroad Company in the Circuit Court for Duval county, and said suits are at issue in said court. Complainants would further show that the original title deeds or evidences in writing from I. D. Hart to the Florida, Atlantic & Gulf Central Railroad Company for said premises, if the same were ever delivered are not now in the custody or power of complainants, and they have been unable to find the same or any trace or record thereof, and by reason of the absence or loss of said deeds complainants have been greatly embarrassed, and are unable now to proceed with safety to trial in said suits. That by the last will and testament of I. D. Hart, Ozias Buddington and Ossian B. Hart were made executors, the latter of whom is now dead, and the former survives. The relationship of the other defendants named in the bill to I. D. Hart, being his descendents, heirs and legal representatives is set out. It is also alleged that complainants had made diligent and thorough search among the papers and records of the Florida, Atlantic & Gulf Central Railroad Company, and through the public records of Duval county for deeds to said lands from I. D. Hart to said company, but that none had been found. That Buddington during the year 1882, long subsequent to the purchase of said lands by said ■company, wrongfully applied to the probate court of Duval county, and obtained an order for the sale of -certain of said lots of land for distribution among the •said heirs, and that William M. Bostwick now claims and pretends to have purchased said lots or certain of them at a sale pursuant to such order of the probate •court, and is now pretending to claim title thereto by virtue of said sale. That complainants hoped that the heirs and representatives of said I. D. Hart, deceased, in consideration of the premises would aid and assist them in obtaining or establishing title deeds to said lands, as in justice and equity they should do, but said heirs and representatives now pretend that said I. D. Hart did not in his life-time sell and convey said town lots to the said railroad as alleged, and that said company had no right to convey the same in trust as alleged, and complainants charge, upon information and belief, that the said I. D. Hart did make and execute under his hand and seal and delivered to said company good and sufficient title deeds at the time of the delivery of possession and receipt by him of the purchase money for said lots, and that said deeds were not recorded, and complainants believe the same have since been lost or destroyed, or else that the said Hart having bargained and sold the said lots of land and received the consideration therefor, intended to execute deeds for the same, but neglected and forgot to make and deliver them as agreed. Further, that said Hart during his life-time, or his said heirs and representatives since his death have not, or either of them, been in possession of said premises or any part thereof since the date of the said transfer to said railroad company in the year 1856, and that said Buddington, ■executor, etc., has wrongfully proceeded to claim said lots as assets of said estate, and had, theretofore advertised and sold some of said lots for distribution under an order of the probate court of Duval county, to William M. Bostwick, who now claims title to certain of said lots by virtue of a conveyance made in pursuance of an order of the said probate court, and with intent to defeat complainants’ title and recovery of •said lots, and he is now threatening to offer the others for sale and to make deeds therefor, and complainants believe he will attempt to do so unless restrained by order of this court, and that although said sales would be void, they would greatly hinder and embarrass complainants in their proceedings for the recovery of said land and cause a multiplicity of suits to the great damage and injury of complainants, all which doings are contrary to equity and good conscience.</p> <p>The special relief prayed for is, that should it be found that I. D. Hart, deceased, had never executed any deed to the said Florida, Atlantic & Gulf Central Railroad Company for said land sold by him to said company, that then his said heirs be decreed to execute and deliver to complainants a good and sufficient deed for said premises, and upon their failure or inability to do so, that a master be appointed by this court and required to execute such conveyance and deeds; and that should it be found that deeds were executed and delivered by said Hart to said company, that then the original deeds may be re-established by decree of this court, and said defendants, the heirs and representatives of said I. D. Hart, and all persons claiming by, through or under them, be forever enjoined from claiming title, selling or attempting to sell said lots, and that said defendants be required to discover and set forth whether or not they or either of them have any of said deeds in their possession or control, or have any knowledge of the existence or whereabouts of the same, and that if any of them have any of said deeds in their possession or under their control, that they be required to deliver the same to a special master of this court; and that the said defendants be required to discover whether they or either of them have sold any of said lands since the death of I. D. Hart to any persons, and if so. to whom; and also that the conveyance to Bostwick be declared void and cancelled, and that he be perpetually enjoined from claiming or asserting title to said lots, and that the Florida Central Railroad Company be required to restore to complainants the possession of said premises.</p> <p>Answers were filed by Buddington, Bostwick, Thomas E. Stribling and wife, and the Florida Central Railroad Company. Buddington admits the death of I. D. Hart and the probate of his will, and that Hart was in his life-time seized of certain lots in the city of Jacksonville, known as water lot 27 and the east half of water lot 28, and that respondent as surviving executor of the estate of I. D. Hart, deceased, not wrongfully, but rightfully, as it was his duty to do, applied for and obtained from the probate court of Duval county an order or orders for the sale of said lots of land, and that they were sold by virtue of said order or orders, and purchased by William M. Bostwick, who claims title thereto. As to every other allegation in the bill of complaint material or necessary to be admitted, denied or proven, respondent denied the same, and especially is it denied that I. D. Hart ever bargained and sold the said lots to the Florida, Atlantic & Gulf Central Railroad Company, or delivered possession thereof to said company; and respondent denies that any agreement m writing for the purchase of said premises, or any portion thereof, or any memorandum or note thereof in writing was ever made, entered into. or signed by the said I. D. Hart, or by any person by him thereunto lawfully authorized, and the benefit of the statute of frauds is claimed the same as if specially pleaded. As to the allegations in reference to one-half of water lot 28, it is averred that any sale thereof at agreement to sell the same by such description would have been void for uncertainty; and it is also specially denied that the Florida, Atlantic & Gulf Central Railroad Company ever executed any valid deed of trust and mortgage of said lots of land situated in the city of Jacksonville, Florida.</p> <p>The answer of Bostwiek is substantially the same as that of Buddington.</p> <p>Stribling and wife admit the allegations of the bill as to the death of I. D. Hart, the probate of his will, the appointment of his executors, and that Budding-ton was the surviving executor; that Hart was during his life-time seized and possessed of the lots described in the bill, but respondents have no personal knowledge of any contract made and entered into between I. I). Hart and the Florida, Atlantic & Gulf Central Railroad Company for the sale of said lands. They say that they have been informed, and believe, and therefore allege that said I. I). Hart did not bargain and sell the said lots to said railroad company; did not deliver possession of the same to it, and did not receive and accept said stock in full payment for said land. Further, that said company did not enter into and continue in the use and occupation of said lots, and that there was no agreement in writing for the purchase of said premises or any part thereof, or any ■memorandum or note thereof in writing ever made, entered into or signed by the said Hart or by any person by him thereunto lawfully authorized, and that no improvements were ever erected by said company upon •certain lots mentioned in the bill, being lots alleged to have been sold by Hart to the company other than water lots 27 and half of water lot 28; and it is denied :that the company ever took possession of the lots described in the bill, or any part of them, except the .said water lots. Respondents denied that Hart ever executed any deed to the said railroad company conveying to it the lots described in the bill, and alleged that the copy attached to the bill is not a true and correct copy of the deed of trust and mortgage from the Florida, Atlantic & Gulf Central Railroad Company; and it is denied that said company ever executed any valid deed of trust and mortgage to the lots of land •described in the bill. Further, that a part of the lots described in the bill are vacant and unoccupied, and have not been in the actual possession of any one, but have been claimed by the executors of I. D. Hart since his death, and part of said lots have been in the possession of defendant William Caulk under a license from the surviving executor for a period of more than seven years before the commencement of this suit. That on the 3rd day of September, 1880, respondents ■filed a bill in the Circuit Court for Duval county against said surviving executor, and all persons «entitled to share in the distribution of said estate, and ■for a final settlement and distribution of said estate, -■and a final decree has been rendered in said suit dis'■charging the said Buddington from the further administration of said estate; that under a decree made in .•said suit certain of the lots mentioned in the bill were sold for distribution to Thomas E. Stribling, William Caulk, J. W. Fitzgerald, P. P. L’Engle, J. E. T. Bow-den, G. B. Griffin, A. S. Baldwin and Lula Dearing, and deeds were made to each of them severally for the lots which they respectively purchased; that the lot purchased by Stribling has since been sold and conveyed by him to one Shuber, and the other lots are in the possession of divers persons whose names are unknown to respondents, and they do not know under what title they claim, or how long they have so held possession.</p> <p>The answer of the Florida Central Railroad Company -admits that I. D. Hart resided in Jacksonville, had died, and that Ozias Buddington was the surviving executor of the will of said decedent, and that decedent during his life-time was seized and possessed of the lots described in the bill of complaint. It is also admitted that said lots were sold in May, 1857, to the Florida, Atlantic & Gulf Central Railroad Company in consideration of stock in said company to the .amount of $10,000.00, which stock was transferred and delivered to Hart, but defendant was not informed, except by complainants’ bill, as to how the said stock was proportioned in payment for the said lots. It is .admitted that Hart accepted said stock in full payment for the lots and delivered possession of the premises to the said Florida, Atlantic & Gulf Central Railroad Company, and that said company entered upon, used and was in the manifest possession and occupation of the same, but a number of said lots have since been taken possession of by divers persons who continued to occupy and retain possession thereof. It is admitted that Hart was a director in the Florida, Atlantic & Gulf Central Railroad Company, and it is charged that he acquiesced in and recognized the title to said lots as being in the said company. The death of Forward and Patten is admitted, and that Fleming and Hunter-had been appointed in their places. It is admitted that the Florida, Atlantic & Gulf Central Railroad Company accepted the provisions of the Internal Improvement Act, and procured the endorsement by the-Trustees of the Internal Improvement Fund of the-bonds of the company known as the first mortgage-bonds, and that they were, under the provisions of said-act, a first lien on the road-bed, iron, workshops,, depots, ticket-offices, right-of-way, lumber yards, terminal facilities and franchises of the said Florida,. Atlantic & Gulf Central Railroad Company. The seizure and sale of said railroad and its property, including depots, workshops, ticket-offices, lumber-yards, terminal facilities, right-of-way and franchises, by the Trustees of the Internal Improvement Fund in March,. 186S, is admitted, and it is alleged that water lot 27 and the one-half of water lot 28 were included in and the title to the same passed to the purchasers at said sale, being a part of the right-of-way of said company in its use and occupation for terminal facilities. It is admitted that William E. Jackson and associates were-the purchasers of said railroad, and that they became-a body politic vested with the powers and franchises-of the said Florida, Atlantic & Gulf Central Railroad Company, under the name of the Florida Central Railroad Company, and that this company entered into-possession of the property of the said Florida, Atlantic- & Gulf- Central Railroad Company, including water lot 27 and the one-half of water lot 28. It is denied that the lien created by the Internal Improvement Act under which the Florida, Atlantic & Gulf Central Railroad Company and its property rights and franchises were sold to the Florida Central Railroad Company extended only to the road-bed, iron, depots, work-shops, equipments and franchises of the former •company; and it is averred that said lots were the subject of said lien, and that all right, title and interest in and to any and all of said lots of the Florida, Atlantic & Gulf Central Railroad Company passed to the purchasers under the sale to Jackson and his associates, and became the property of the Florida Central Railroad Company, and that this company took said lots free and discharged from any encumbrance whatever, .and acquired a perfect title to the same. It is also admitted that the original title deeds from Hart to the Florida, Atlantic & Gulf Central Railroad Company to .said lots, if delivered by him, are not now in the custody of complainants, and that they have been unable to find the same, or any trace or record thereof, arid that diligent search among the papers of the Florida, .Atlantic & Gulf Central Railroad Company has been made, and that no deeds from Hart can be found, but it is admitted that Hart did sell said lots to said railroad company for a valuable consideration, and deliv•ered possession of the same, and did make and execute in due form deeds to said land and deliver the same to said company. It is denied that the exhibit attached to the bill, purporting to be a copy of a deed of trust to said lots of land from the Florida, Atlantic & Gulf Central Railroad Company, is a true copy, and it is denied that said company ever executed any valid deed of trust to said lots, as described in the bill of complaint; and it is alleged that if, as a fact, any valid deed of trust or mortgage of said lots were made, that the lien given by the said Internal Improvement Act, .approved January 6th, 1855, was a prior actual existing first lien upon the road-bed, iron, depots, workshops, equipments, right-of-way, ticket-offices, lumberyards and terminal facilities of said Florida, Atlantic- & Gulf Centra] Railroad Company, and the said trustees had the right to seize and sell said property by virtue of said act, and that the purchasers at the sale-made by the trustees in 1868 took all of said lots free and unencumbered from any deed of trust, mortgage- or other instrument in writing. That under and by virtue of said sale all the right, title and interest of the said Florida, Atlantic & Gulf Central Railroad Company in and to said lots passed to Jackson and his-associates, and under the organization of the ETorida Central Railroad Company, under the act of July,. 1868, became the property of that company. That said water lot 27 and one-half of water lot 28 are nowand were at the time of said sale by the trustees a part of' the right-of-way of the defendant comjDany and its successors, and wTere then and are now in the actual use-of said company and its successors as part of its right-of-way, and said lot and half lot prior to the date of' the sale by the Trustees of the Internal Improvement Fund, and continually from that date to the present time, constituted and formed a portion of the right-of-way of the defendant company and its successors, and were then and are now in the actual use of defendant- and its successors for depots, ticket-offices, lumberyards and general uses for terminal facilities. That if there was ever any trust deed conveying the property described in the bill of complaint for the purpose of securing any such bonds as those described, the validity of which is specially denied, the same was subject to the prior lien of the Trustees of the Internal Improvement ETmd, under and by virtue, of the said Internal Improvement Act, approved January 6th, 1855, and the sale under the provisions of said act gave the purchasers thereat a good title to the property, free-from any lien under such trust deed, and defendant, denies the right of complainant to subject the property-described in the bill, or any part thereof, to the purposes alleged in the bill.</p> <p>Replications were filed to the answers, and decrees-fro confesso taken against defendants not answering. The case having been transferred to Alachua county, in the Fifth Circuit, on account of the disqualifications of the Judge of the Fourth Circuit, a master was appointed to take testimony, and after his report the-court dismissed the bill on final hearing. On petition of holders of free land bonds referred to in the bill, the court appointed Loton M. Jones and Eugene B. McBride trustees of the free land, bonds of the Florida, Atlantic & Gulf Central Railroad Company, it appearing that Louis I. Fleming and Green H. Hunter-had died, and Jones and McBride entered an appeal from the final decree dismissing the bill.</p> <p>The other facts of the case are stated in the opinion of the court.</p>

statement. The appellant company filed a bill in chancery in the •Circuit Court for Duval county against appellees to enjoin the prosecution of an ejectment suit instituted by Bostwick against the company to recover possession of certain described lots of land situated in the city of Jacksonville, and also for the establishment of a legal title to said lots in the company.

BRIEF OF PETITIONER’S ATTORNEY. The court in ascertaining the intention of the Legislature in enacting a law which is attacked as being-illegal and unconstitutional should look to contemporaneous legislation enacted by the same body, on the-same subject, either before the passage of said law, or afterwards. See Sutherland on Statutory Construction, sec. 288; Bishop Sta. Crimes, sec. 82, 15 Fla., pp. 355.

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts in the case are stated in the opinion of the» Court.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

statement. This is a suit brought by the appellee against the appellant in the Circuit Court for Levy county, in chancery, and the ultimate relief prayed for in the bill is that the appellee be made a co-plaintiff in another suit pending in the same court against the appellant, to which he is not a party, and be allowed to participate in the relief prayed for in the bill in that suit. The appellant interposed a general demurrer to the bill.

<p>Criminal law — entering buildings with intent to commit larceny-evidence OF GUILT FROM POSSESSION OF STOLEN GOODS— OWNERSHIP OF BUILDING ENTERED, HOW ALLEGED AND PROVED— CHANGE OF YENUE — ACCOUNTING FOR POSSESSION OF STOLEN GOODS, WHEN SHOULD ACQUIT.</p> <p>1. Under the provisions of sec. 2926 Rev. Stat., relative to change of venue in criminal cases the application for such change is addressed to the sound discretion -of the trial court, and a refusal of such an application will not be held as error by the appellate- • court, unless it appears from the facts presented that the court acted unfairly, and was guilty of a palpable abuse of sound discrelion; and where the change is sought upon the ground* of alleged prejudice against the accused on the part of the inhabitants of the county, this court can not declare that any such reversible abuse of discretion has been committed when, the facts urged as a necessity or reason for the change of venue, in the application therefor, have no other support than the bare affidavit of the accused applicant therefor.</p> <p>2. Whei-e the accused makes and flies an affidavit for continuancof a criminal cause against him, and subsequently, in his statement under oath on the trial of another criminal cause against him, makes assertions that conflict, or are materially inconsistent with the statements made in such affidavit for continuance, the latter is admissible in evidence to rebut the former</p> <p>3. Where a party who is found in possession of goods recently stolen directly gives a reasonable and credible account of how he came into such possession, or such an account as will raise a. reasonable doubt in the minds of the jury, then it becomes the-duty of the State to prove that such account is untrue, otherwise he should be acquitted; and the jiu-y are the sole judges-of the reasonableness and credibility of the account given.</p> <p>4. Where an indictment for the crime of entering a building, room- or office with intent to commit larceny, alleges the oimership of the office entered to be in A., if the proof shows that A. occupies such office as a tenant or lessee of the real owner, it. is sufficient to sustain the ownership as laid in the indictment. In this class of cases, as in larceny, proof of special or temporary ownership, possession or control, such as a lessee would have over the room in which the crime was committed, is sufficient to sustain an allegation in the indictment that such lessee was the owner.</p> <p>5. If the court gives an erroneous instruction at the defendant’s request, he is left with nothing to complain of if the court subsequently corrects the error committed in his favor and at his request, by giving a correct instruction upon the same point.</p>

<p>Writ of Error to the Circuit Court for St. Johns; county.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

<p>Writ of error to the Circuit Court for St. Johns county.</p> <p>The facts of the case are stated in the opinion of the court.</p>

Writ of Error to the Circuit Court for St. Johns •county. The facts of the case are stated in the opinion of the •court.

Charles F. Warriner, as surviving partner of the-firm of Hungerford & Warriner, sued the appellants for alleged services as secretary and treasurer of the defendant company. The company pleaded never indebted. On the trial of said cause the verdict was for the plaintiff and judgment rendered for the sum $1,389.15. This judgmant appellants seek to reverse for the errors assigned and filed in this case.

<p>1. A record which only shows that a “jury were impaneled to try this cause,” is fatally defective in not showing that the jury was sworn.</p> <p>3. The fact of the jury being sworn should appear of record, and a recital that they were sworn in the b;ll of exceptions does not cure the defect.</p> <p>3. There is no inference that the jury was sworn from the use of the word “impaneled.”’ Impaneling has nothing to do with the drawing, selecting and swearing jurors, but simply means making the list of those who have been selected.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts of the case are stated in the opinion of the-court.</p>

<p>Appeal from the’Circuit Court for Duval county.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

<p>Writ of error to the Circuit Court for Walton county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of Error to the Circuit Court for Polk county.</p> <p>The facts of the case are stated in the opinion of the court.</p>

<p>Writ of Error to the Circuit Court for Jackson <eounty.</p> <p>The facts of the case are stated in the opinion of the ■-■court.</p>

<p>Writ of Error to the Circuit Court for Duval county.</p> <p>The facts of the case are stated in the opinion of the court.</p>

<p>Appeal from the Circuit Court for Lake county.</p> <p>The facts of the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit Court for Marion county..</p> <p>The facts in the case are stated in the opinion of the-Court.</p>

<p>Writ of error to the Circuit Court for Duval county.</p> <p>The facts in the case are stated in the opinion of the coni't.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts of the case are stated in the opinion of the ■court.</p>

<p>1. “A man not named as payee who puts his name on the back of a note before delivery to the payee, upon the faith of which money was loaned or credit given by the payee to the maker, is liable on it as an original promisor, although it be proved he wrote his name on the note as surety for the maker. His liability is that of a joint and several maker of the note.” (Melton vs. Brown, 25 Fla. 461, 6 South. Rep. 211.) In such a case there need be no specific allegation in the declaration that money was loaned or credit given by the payee to the maker, upon the faith of the endorsement. Substantial proof before the trial court that such credit was given, and that the note was received by the payee in part payment of the purchase money of land and other property, is sufficient to hold an endorser, under such circumstances, as an original maker.</p> <p>2. It is not necessary to prove the consideration of anote before offering it in evidence when the consideration is denied by plea; but when there is such a plea denying the consideration, the plaintiff can not take judgment upon the note alone, but must prove the consideration upon which it was given.</p> <p>3. When a defendant by plea has denied the consideration of a note sued upon, it is not erroneous for the court to permit the plaintiff to offer evidence tending to prove such consideration.</p> <p>4. The court below ruled out a question to one of the defendants and the answer thereto, as follows: “In what capacity did you place your name upon the note sued upon ? ” Answer: “As indorser,” but permitted said defendant to testify fully as to the circumstances under which said endorsement was made, and which circumstances show conclusively that he was an original maker of the note: Held, That, admitting the referee to have erred in the ruling, it was a harmless error. The incorrect legal opinion of the defendant could not have affected the judgment in the case.</p> <p>5. It is not erroneous to refuse to admit irrelevant testimony.</p> <p>6. As to whether it was necessary in the interval between the going into effect of the Constitution of 1885, and the effective operation of the Revised Statutes in 1892, that pleas in civil cases at law should be -worn to, not determined; but where a plea was not allowed to be filed because it was not sworn to, but another plea, the same in substance as that excluded was subsequently filed, and under this last plea all evidence was admissible, and was admitted, which could have been offered or admitted under the excluded plea, the ruling excluding the plea, even if erroneous, did not change the issue, or affect the legal rights of the parties, and is not reversible error.</p> <p>7. A plea to a promissory note payable to order, which alleges that the plaintiff at tine time he commenced action did not; own the promissory note sued upon, and had no right or interest in the same, that his only connection with the same was and is that-it was endorsed to him for collection, does not state any defense to the action, but clearly shows a cause of action in favor of the plaintiff, and that while plaintiff did not have the absolute ownership of the note sued upon, he yet had it rightfully in his possession as agent, or trustee for collection, and could sue-upon. the same.</p> <p>8. If a note be endorsed in blank, the courts never inquire into the right of the plaintiff whether he sues in his own right or as trustee, nor into the right of possession, unless a plea be made-of mala fieles in the plaintiff’s possession.</p>

<p>Writ of Error to the Circuit Court for Duval county.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

<p>Writ of error to the Circuit Court for Orange county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appeal from the Circuit Court for Alachua •aaounty.</p> <p>The facts of the case are stated in the opinion of the «•■court.</p>

<p>'The tax act of 1891 (Chapter 4011) went into effect August 4th, 1891, sixty days after the final adjournment of the Legislature of that year, and Sections 7 and 8 of said act can not avail a clerk of the Circuit Court as a defense in mandamus proceedings to compel him to execute a tax deed on tax certificates of sales properly issued on the second day of September, 1889, for nonpayment of taxes for the year 1888, and which deed was demanded on the 18th day of July, 1891. The right to the deed accrued before the act went into effect; and this would be the result independent of the conclusion x’eached in Hull vs. State ex rel, 29 Fla. 79, 11 South. Rep. 97, as to the effect of the sections of the act referred to on such tax sales.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts of the case are stated in the opinion of the-court.</p>

<p>Writ of Error to the Circuit Court for Duval •county.</p> <p>statement.</p> <p>The proceeding here is by distress warrant, sued out by the plaintiff in error against defendants in error in the Circuit Court for Duval county. The affidavit avers that Philip Kurtz and Benjamin. Kurtz, partners, doing business as Kurtz Brothers, 'were indebted to affiant in the sum of live hundred dollars as rent for the use of certain described premises in the city of Jacksonville, Duval county, Florida, from the 15th day of August, 1888, to the 15th day of January, 1889. A distress warrant was issued and levied on personal property on the premises.</p> <p>Defendants made oath that it was not true that Philip Kurtz was indebted to the affiant Tischler for rent in any amount whatever, and that it was not true that either of the defendants was indebted to Tischler for rent in the sum of five hundred dollars; that Benjamin Kurtz owed Tischler three hundred dollars for-rent, one hundred dollars of which was paid by him to Tischler, and by him attempted to be returned, and the remaining two hundred dollars was tendered to him and refused, and that the three hundred dollars, and every part thereof, was tendered by Benjamin Kurtz to Tischler, and by him refused before the commencement of the suit. A bond was also executed by defendants conditioned that they would well and truly pay the amount of the rent found to be due on the-trial.</p> <p>The case was submitted to a jury, a verdict rendered in favor of defendants and judgment entered in their favor.</p> <p>The plaintiff introduced in evidence a lease from himself to Kurtz Bros, to the premises in question for the term of three years next ensuing the 15th day of June, 1886, at the rental of one hundred dollars per month in advance, and one-half the water tax quarterly as presented. The lease was under seal and signed by Philip Tischler and Kurtz Bros., by B. Kurtz. Plaintiff testified that defendants were his tenants from the-15th day of June, 1886, until the 15th day of January, 1889, and during that time occupied the premises mentioned under the lease,, conducting a partnership business under the firm name of Kurtz.Bros., in. the whole•sale and retail of tobacco and cigars. That at the time the distress warrant was sued out, the defendants owed rent from August 15th, 1888, to January 15th, 1889, at the rate of one hundred dollars per month, making the sum of five hundred dollars, no part of which had been paid. He further testified, on cross-examination, that Benjamin Kurtz did not tender him three hundred dollars, or any other amount, in payment of rent; that he, Kurtz, topk out of his pogket a roll of something resembling bills, and said he would give witness three hundred dollars, but did not count it. Witness replied that he would take it on account ■of the rent, but Kurtz declined to give it to him unless he would take it in full payment. About the 20th of December, 1888, Kurtz brought witness a check for one hundred dollars, and said “this is for this month’s rent,” and witness thinking there was some catch in it returned it stating that unless it was given on ac- . count of past due rent he could not accept it. Witness denied that he had seen a notice of dissolution of the partnership between Philip and Benjamin Kurtz, or that he had ever received by mail such a notice. He recollected that Philip Kurtz, in May, 1888, said that he was going to leave Jacksonville, and go to New York, and did not think that he would come back to Jacksonville, as he could do better in business in New York. Witness then stated that he hoped Kurtz would do well, and that it did not matter with him who paid the rent, so long as it was paid. Witness admitted the receipt of two checks on a bank in Jacksonville, drawn by Benjamin Kurtz, one dated June 15th, 1888, and the other July 16th, 1888, each for one hundred dollars. The checks were for rent and were paid. Witness further stated that he went to New York, and returned after the epidemic had commenced, and found that his nephew, a clerk, had gone away and left witness’ store in charge of another clerk. Benjamin Kurtz did not take charge of the store during the epidemic, and witness’ nephew did not give him charge of the store. Kurtz did no work for witness, and he never-promised Kurtz to knock off any part of the rent on that account, or for any other reason, but distinctly stated that he would not make any deduction in the rent. The nephew was clerk and had no authority to put any one in charge of the store. Witness was asked if he did not in the presence of Mike Kurtz, in December, 1888, after the epidemic, at a certain place designated, say to Benjamin Kurtz that, as he had kindly looked after witness’ store for a while during the epidemic, he would make a reduction of fifty per cent, of the rent. Witness denied positively making such statement, and said that Kurtz claimed that he had taken charge of the store, and a reduction of fifty percent. of the rent ought to be made, but witness declined emphatically to do so.</p> <p>Defendants put in evidence the two checks referred to, and also a notice of a dissolution of the partnership of Kurtz Bros., dated May 24th, 1888. Philip Kurtz: testified that in May, 1888, he retired from the firm of Kurtz Bros., had notices of the dissolution printed and mailed to all the creditors, and put one in the postofficeaddressed to plaintiff. He further stated that he called the attention of the plaintiff to the fact of his retirement from the firm, and that Benjamin Kurtz would pay the rent in the future. Plaintiff told him, PhilipKurtz, that it was all right, he did not care so long as-he got his rent.</p> <p>Mike Kurtz testified for defendants that plaintiff told! Benjamin Kurtz, brother of witness, that he, plaintiff, would make a reduction of the rent on account of the-epidemic and the services rendered by Kurtz in taking: care of the store. That Benjamin Kurtz, after the epidemic had commenced, and after plaintiff’s nephew-had gone away, took charge of plaintiff’s store, opening it in the morning, and closing it at night. This was from about August 12th, 1888, until plaintiff’s return, about August 23rd of same year, and there was at the time in the store clerking for plaintiff a man. who remained in the city attending to the store. Tho witness Mike Kurtz further testified that the plaintiff made a statement, which he denied making, in the-presence of the witness, that is, inasmuch as Benjamin Kurtz had kindly looked after the store for a while during the epidemic, the plaintiff would allow him fifty per cent, reduction on the rent.</p> <p>In rebuttal plaintiff introduced a witness who was in Jacksonville the greater part of the epidemic of 1888,. and testified to seeing the clerk in plaintiff’s store, but did not recollect of seeing Kurtz there.</p> <p>Plaintiff further testified that his nephew had no-authority to put the store in charge of any one. When he left, Tyler took charge, and plaintiff on his return found him in charge.</p> <p>The other facts in the case are stated in the opinion of the court.</p>

<p>Appeal from the Circuit Court for 'Marion county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

Writ of error to tire Circuit Court for Columbia, county. The facts of the case are stated in the opinion of tke* court.

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. The common law rule is, that to authorize a recovery on a-bond of indemnity, as distinguished from one of indemnity and also against liability, actual damage must be shown~by the plaintiff.</p> <p>2. The general rule is, that verbal contemporaneous agreements are-inadmissible to contradict or vary the terms of a valid plain written instrument, but in order to arrive at the correct meaning of the language of a contract, and to make a correct application of the terms used to the subject-matter and objects referred to therein, where such matters are left in doubt, the surrounding circumstances may be considered, and they are not excluded under the general rule mentioned.</p> <p>3. A suit on a bond, reciting that the obligee therein had settled in full with the obligor under a certain contract for the improvement of a hotel by paying a sum mentioned in full of all demands, and canditioned that the obbgor should well and truly pay off his sub-contractors, laborers and material men, so that no lien should attach or be asserted against the building or land on which it was situated, and hold the obligee harmless against any and all claims for labor or material used or contracted for by the obligor in or about the improvement of the building, and the claim sued for was alleged to be for material used by the obligor in and about the building, a plea interposed, .alleged in substance that the claim sued on was a demand due from the obligor in the bond to the obligee and that in the settlement made between them at the time of the ex< cution of the bond the said claim had been adjusted and paid in full; Held, That the plea was good on demurrer.</p>

<p>Appeal from the Circuit Court for Hillsborough county.</p> <p>The facts of the case are stated in the opinion of the court.</p>

<p>Appeal from the circuit court for Walton county.</p> <p>The facts in the case áre stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Alachua county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appeal from the Circuit Court for Manatee county.</p> <p>statement.</p> <p>In November, 1886, Alexander S. Watson, as trustee, and J. II. Viser filed a bill against George Booker, Jr., Warburton S. Warner and wife, Helen C. G. Warner, to foreclose a trust deed executed on the 5th «day of October, 1885, by Booker to Watson, as trustee, to secure the sum of $1,000, evidenced by a promissory note of even date with the trust deed executed by Booker to Yiser, with twoy>er cent, interest per month. The property described in the trust deed mentioned is the enclosed lot of land surrounding the Hoosier Saw Mill at Palma Sola, in section twenty, township thirty-four south, of range seventeen east, including Hoosier Saw Mill and fixtures, blacksmith shop and water tank, together with all and singular the tenements and improvement thereon of every name, kind and description, and situated in Manatee county, Florida. It is further alleged that in February, 1886, Booker conveyed the said property to Mrs. Warner, •and that she and husband, Warburton S. Warner, executed at the same time a writing to Booker assuming to pay the debt secured by the trust deed.</p> <p>Subsequently, in January, 1887, Watson and Yiser filed another bill against Booker and wife, Warburton S. Warner and wife, and F. N. Horton and wife to foreclose another deed of trust executed in December, 1885, by Booker and wife to Watson, as trustee, to secure the sum of $1,500, evidenced by Booker’s note to Yiser, with two per cent, interest per month. The property described in this trust deed is as follows, viz: all of the lot of land on which is situated the Hoosier Mills, in the village of Palma Sola, in Manatee county, including the lot enclosed around said mill, and all appendages and appurtenances thereto, as fully and to the extent of the title obtained by Booker at the sheriff’s sale under execution against W. S. Warner on the 5th day of October, 1885, including all mills, machinery, fixtures, tanks and buildings thereon or thereto appertaining. Said property being in section seventeen, township thirty-four S., range seventeen east; also the dwelling house and premises of said Booker, known on plan of survey by 0. Campbell as lot 2 in block 14, same section as the above described property; also twenty-one and 83-100 acres of land* near Ellenton, in said county, being the N. iof the E. i of the W. i of the S. E. £ of section seven, township thirty-four, R. eighteen E., formerly owned by the heirs of J. W. Dabney. The section mentioned in describing the first parcel, the TIoosier Mill property, is alleged to have been inserted by mistake, and that it should be in section twenty, instead of section seventeen. This is asked to be corrected. It is also-alleged that when Booker conveyed, in February, 1886, the Hoosier Mill property to Mrs. Warner (the said property being also embraced in the second trust deed to secure the additional sum of $1,500), she and her-said husband agreed in writing with Booker to assume, and did assume, the payment of the said sum of $1,500, thereby assuming to pay the entire amount of $2,500 secured by the said trust deeds.</p> <p>Demurrers were filed by Warner and wife to both bills, and, the demurrers being sustained, an amendment was filed. No questions are presented on this, appeal as the rulings of the court on the demurrers, and no special reference need be made to the record relating to them. The suits were consolidated, and. Booker, Warner and wife answered the amended bill,, and Mrs. Warner, by her next friend, Gfeorge C. Warner, filed a cross bill against Warburton S. Warner,. Gfeorge Booker, Jr., J. H. Yiser and Alexander S. Watson, trustee. Horton and wife did not answer the bills filed by Watson and Yiser, and no further notice was taken of them after service of procees. Booker admitted the allegations of the bills to be true.</p> <p>Exceptions were filed to the answers of Warner and wife, but it seems that the exceptions were abandoned, and replications filed in the answers. Demurrers were-filed by Watson, Yiser and Booker to the cross-bill of.' Mrs. Warner, ancl these demurrers being sustained, the cross-bill was amended. There is no question presented here on the ruling of the court on the demurrers to the cross-bill, and further reference to the record as to such matters is omitted. After the cross-bill was -amended, Watson, Yiser and Booker answered, and Mrs. Warner filed replications to answers of Yiser and Booker.</p> <p>The appeal to this court is solely on behalf of Mrs. "Warner, and the issues presented by her answer and -cross-bill will only be referred to in this statement. In her answer Mrs. Warner admits that it may be true, ;as alleged in the bill of complaint, that Booker, the .grantor in the trust deeds, had a deed to the Hoosier Mill property and appurtenances under a sheriff’s sale •on execution against Warburton S. Warner, but it is denied that his title was in fee -simple; that while the .said Hoosier Mill property may have been sold as the property of Warburton S. Warner, it was not his •property, but had been bought with her money, and -all the improvements placed on said property had been paid for with her money. Further, that if said mill property had been the property of Warburton S. Warmer, Booker should have no title to it for the reason that when said sale was made' he was in the employment of Warburton S. Warner as agent, business manager and confidential friend, to look after said property, and that he, Booker, made said purchase as agent and friend of said Warner while he was absent in the city of New York, and with the express agreement and understanding that it was made for his benefit; and such as-sertions being máde at the time of the sale to bidders, •caused said property to bring only the sum of $1,000, when it was worth the sum of twelve thousand dollars. 'That after purchasing said mill property and obtaining a title to himself, he made a deed of trust in his own name to J. H. Yiser for $1,000, about nine hundred and fifty-five dollars of which was applied to the execution under which said property was sold, and the-balance was accounted for to W. S. Warner. After-wards, in December, 1885, the said Booker, notwithstanding he had bought said property for W. S. Warner, took advantage of the fact that the title was in him and again executed a trust deed for the benefit of Yiser for $1,500, which was procured for Booker’s own benefit, in violation of the trust reposed in him, and of Warner’s rights as the equitable owner of said property. It is also alleged that Watson, who was designated as trustee, and Yiser were fully acquainted with the facts above alleged at the time the said advance-last charged was made, and respondent did not know of the last mentioned deed of trust or mortgage.</p> <p>It is admitted that Booker and wife deeded the said, mill property to respondent upon the condition that-she and the said W. S. Warner would assume the payment of the mortgage for $1,500, as well as the one for $1,000, to procure the money to buy the property at sheriff’s sale. Respondent alleges that the $1,000 was. an individual debt of W. S. Warner in which she had no interest, and that the $1,500 debt was for the individual benefit of Booker, in which neither she nor W. S. Warner had the slightest interest; that in executing-the obligation assuming to pay the two mortgages of $2,500, she did so only at the request of her husband, who represented to her that it was better to submit to-the imposition of Booker’s demand than to be subjected to his avarice in holding the title to the property which he had so fraudulently procured and claimed,, he having assumed entire control of the property, and even more than was covered by the purchase, and had given notice to renters to attorn to Mm, and for said Warner to remove his lumber from the yard, and was adopting oppressive, dictatorial and tyranical measures in regard to the property.</p> <p>It is denied that the title to the said property was vested in Watson as trustee; or that he had any interest whatever by virtue of said transactions, aDd it is averred that the trust deeds can not amount to any more than the mortgages, and that said mortgage is void through fraud as to all the said property in which respondent is interested.</p> <p>The cross-bill refers to the proceedings on the part of Watson and Viser to foreclose the trust deeds, and reiterates in substance the allegations of the answer of Mrs. Warner thereto. It is alleged in the cross-bill that the enclosed lot of land surrounding Hoosier Sa w Mill at Palma Sola, in section twenty, township thirty-four south, range seventeen east, including Hoosier Saw Mill and fixtures, blacksmith shop and water tank is not the property of Booker or his wife, nor was it at the time of the sale to Booker under execution the property of Warburton S. Warner, the husband of complainant. The cross-bill specifies with minute detail the property owned by Mrs. Warner, the complainant, and how she obtained it, and alleges that her property, amounting to thousands of dollars, was placed by her to the credit of her husband, and that he, having no property of his own, invested her property in lands, and other property in Florida, and that the said Hoosier Saw Mill property was bought entirely with her money. It is further alleged that while W. S. Warner was absent in New York on business requiring his personal attention, and while the said Booker was employed by Mm and in charge of the said Hoosier Mill and the business pertaining thereto, the said property was seized under an execution in favor of tlie Sessinghaus Milling Co., against W. S. Warner, and sold on the first Monday in October, 1885, by the sheriff to George Booker, Jr., as shown by the deed of conveyance attached to the original bill. The allegations of the answer as to the purchase of said property by Booker for W. S. Warner, and the execution of the trust ■deeds to secure Yiser in the sum of $2,500, are repeated substantially in the cross-bill, and it is further alleged that the said Hoosier Saw Mill property from the time of its purchase was the trust property of complainant, Helen C. G. Warner, having been purchased with her own money, and that the Sessinghaus Milling Co., Brooker, Watson and Yiser knew this to be the fact; that it was known generally in the community, and personally known to the defendants in the cross-bill, that W. S. Warner had no property of his own, and that he was using the property of complainant in purchasing the said Hoosier Mill property and all others purchased by him in his name. It is further alleged that after W. S. Warner returned from Hew York, it was agreed between him and Booker that the latter should convey the said Hoosier Mill property to complainant upon the condition that she and her said husband would assume in writing the payment of the said sum of $2,500 due Yiser, and secured by said trust •deeds, and that this agreement was carried out to the •extent of the execution of the deed of conveyance and the written obligation assuming the payment of said siim of money. It is alleged, however, that W. S. Warner was ignorant of his own rights and these of complainant when said agreement was made. It is also alleged that W. S. Warner had conveyed some property purchased by him with complainant’s money to her, but it was not in value sufficient to pay for the money belonging to her and which he had used, and that he was hopelessly insolvent.</p> <p>There were interrogatories propounded to the defendants, which need not be set out, as the foregoing-statement is sufficient to exhibit the points of controversy upon which the case was decided below, and upon which it depends in this court.</p> <p>The prayer of the cross-bill is, that the Hoosier Mill property described in the trust deeds be declared to be the separate property of Mrs. Warner, and that the foreclosure proceedings be enjoined.</p> <p>The answers of Booker and Yiser set forth the transactions as to the sale of the Hoosier Mill property under execution, and the purchase by Booker, and the loan of the money to him by Yiser, secured by the trust deeds. It is expressly and positively denied that the defendants, Watson, Yiser and Booker had any knowledge, actual or constructive, of the fact that Mrs. Warner ever had any interest in the property, or that her money went to purchase the same. In short, the answer denied all the material allegations of the cross-bill, upon which the complainant therein relied for relief.</p> <p>The court decreed that the complainant Yiser was entitled to the relief prayed in the two bills of complaint, and recited that a master had been appointed to compute what was due on the notes secured by the trust deed, and that he had reported the total amount due for.principal, interest, costs and attorney fee to be $6,128.60, and it was decreed that this sum was due complainant. The property described in the trust deeds was ordered to be sold at public auction to pay the amount found due and interest thereon, and a commissioner was appointed to make the sale, disburse the money arising therefrom, and execute deeds to the purchasers; aud that W. S. Warner, Helen C. G.. Warner, George Booker, Jr., and Kate Booker be forever barred and foreclosed of and from all equity of redemption and claim in and to said property.</p> <p>Two appeals were entered from the final decree; one-in the name of Helen C. G. Warner, and the other in the name of Helen C. G. Warner by her next friend George C. Warner. The purpose, as we infer from the record, was to appeal from the decree granting relief on the bill of complaint, and the refusal of the-court to grant the prayer of .the cross-bill.</p> <p>Reference to the testimony will be made in the-opinion.</p> <p>The other facts in the case are stated in the opinion of the court.</p>

<p>Appeal from the Circuit Court for Leon county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appeal from the Circuit Court for Hillsborough •■county.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

<p>Writ of Error to the Circuit Court for Leon county.</p> <p>The facts in the case are stated in the opinion of the-court.</p>

<p>.Appeal from the Circuit Court for Madison county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appeal from the Circuit Court for Lake county.</p> <p>The facts in the case are stated in the opinion of the •Court.</p>

<p>Appeal from the Circuit Court for Duval county..</p> <p>The facts in the case are stated in the opinion of the court.</p>

STATEMENT. Judgment was obtained in the Circuit Court in February, 1891, by appellee against appellant in an action-of assumpsit on a promissory note, and an appeal entered. The note sued on is as follows: “Jacksonville, Fla., August 4, 1886.

<p>Writ of Error to the Circuit Court for Walton county.</p> <p>The facts of the case are stated in the opinion of the-court.</p>

<p>Appeal from the Circuit Court for Yolusia county.</p> <p>Motion to dismiss appeal.</p> <p>The facts in. the case are stated in the opinion of the court.</p>

This is a case of original jurisdiction. The facts in the case are stated in the opinion of the court. Motion for taxation of costs.

STATEMENT. William K. and Albert Hyer, as partners under the firm name of Hyer Brothers, sued George W. and Rex Robinson, as partners under the firm name of George W. Robinson & Co., and obtained a judgment.

<p>Writ- of Error to the Circuit Court .for Suwannee county.</p> <p>The facts of the case are stated in the opinion of the* court.</p>

<p>Appeal from the Circuit Court for Marion county.</p> <p>The facts in the case are stated in the opinion of the-court. -</p>

<p>Appeal from the Circuit Court for Orange county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of Error to the Circuit Court for- Suwannee county.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

<p>Writ of error to the Circuit Court for St. Johns-county.</p> <p>The facts of the case are stated in the opinion of the court.</p>

STATEMENT. The Florida Central and Peninsular Railroad Company filed its bill in equity in the Circuit Court of Leon county against William I). Bloxham, as Comptroller ■of the State of Florida, and John A. Pearce, as sheriff of said county.

<p>Writ of Error to the Circuit Court for Lake county.</p> <p>The facts in the case are stated in the opinion of the-court.</p>