Volume 36 — Florida Reports

STATEMENT. Appellant filed a petition for mandamus in January, 1891, against appellee, as clerk of the Circuit Court of Yolusia county, and therein alleged, substantially, that on the 8th day of May, 1889, the tax collector of said county offered for sale, in accordance with law, a large number of tracts of land situated in said county for the unpaid taxes thereon, together with interest and costs as fixed by law, for the year 1888, and there being no bidder for a large…

<p>1. Where the cap>tain of a vessel belonging to the defendant had left with the garnishee a sum of money to be remitted to the defendant, who resided in a foreign country, and defendant and garnishee in correspondence both recognized the money as belonging to the defendant, and the garnishee would have remitted the money to the defendant, but for inability to obtain a bill of exchange to advantage before a writ of garnishment was served upon him, the evidence is sufficient to show the ownership of the defendant in such sum of money.</p> <p>2. Where money is deposited with the garnishee to be remitted to the defendant, and it is contemplated by the guarnishee and the person making such deposit that the money shall not be preserved in specie, or remitted unchanged in form to the defendant, but that it should be invested in a bill of exchange for convenience of transmission, the garnishee is not in possession of specific chattels belonging to the defendant, and can set off against the garnishment a debt due by the defendant to him, the garnishee.</p> <p>8. A garnishee is not by the service of the writ to be placed in any worse condition than if the defendant, his creditor, had brought suit upon the claim which is garnisheed. As to the garnishee, the plaintiffs take the shoes of the defendant, and can assert only the rights of the latter. The rule is, that while the garnishee may not, after the service of the writ, by his own action acquire set offs or counter claims against the XDi'incipal debtor to the prejudice of the attaching creditor, he may properly avail himself of all claims fairly arising out of contract with the principal debtor which were in existence when the attachment commenced, and under or out of which his claim against the principal debtor arises.</p> <p>4. If a defense of set off against a principal debtor claimed by a-garnishee is such as would be allowed; against such principal* debtor, it should be allowed against the garnisheeing creditor.</p> <p>5. The garnishee plead only the usual statutory answer, i. e., a general denial of indebtedness to the defendant, and of the possession of goods, etc., belonging to him. The statute under.which the trial was had provides that when such answer is traversed, “the court shall direct, without the formality of pleading, a jury to be empanelled ,* * to enquire what is the true amount due from such garnishee to the defendant.’7 Under such statute a set off need not be formally pleaded to be available as a defense, but under such issue the court should allow any legal and proper evidence and defense that wouldi show the true amount due from the garnishee to the defendant,.</p>

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

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

<p>ATTACHMENT — BEFORE WHAT OFFICER AFFIDAVIT FOR COULD FORMERLY BE MADE.</p> <p>Under the provisions of Chapter 998 laws, approved December 20th, 1859, in force up to and until the adoption, in 1892, of our Revised Statutes, no attachment could properly issue unless the party applying for same, his agent or attorney, first made an affidavit, in compliance with the statute, before the clerk of the Circuit Court, or before a justice of the peace. That statute expressly confined the making of the prerequisite affidavit-before those two officials, and an affidavit sworn to before-any other official did not authorize the issuance of the writ.</p>

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

<p>ASSIGNMENT FOR BENEFIT OF CREDITORS — IMPEACHMENT OF AT LAW THROUGH THE PROCESS OF GARNISHMENT OF THE ASSIGNEE — PARTIAL ASSIGNMENTS AND PREFERMENT OF CREDITORS FORBIDDEN — ASSIGNMENT LAW MANDATORY — COPARTNERSHIP ASSIGNMENT.</p> <p>1. The provision of the assignment law, Chapter 3891, acts of 1889, requiring the assignor to make oath to the effect that he had. placed'iin the hands of his assignee all of his property of all kinds whatsoever, was mandatory, and a failure to make such oath rendered an assignment inoperative and void.</p> <p>2. The practice is well-established that the validity of a deed of assignment, made for the benefit of creditors, and alleged to be fraudulent or void, may be tested and tried in a court of law upon an issue made between a creditor and the assignee summoned as’garnishee under the provisions of law relating to garnishments; and,"in the trial of such issue, if the assignment is found to be fraudulent, ineffectual or void, the garnisheemg creditor should recover against the assignee the amount found in his hand under such void assignment at the time of the service of the writ up to the extent of such creditor’s claim.</p> <p>3. The evident purpose of said assignment law, Chapter 3891, was to prohibit partial assignments for the benefit of creditors in this State, and to prohibit therein the preferment of one creditor over another. Where a deed of assignment made by a firm of copartners for the]¡ benefit of their creditors conveyed to the assignee nothing but the joint property of the firm, without including also the property of the individuals composing the firm, it was a partial assignment only, and void under this statute requiring a conveyance of all the debtors’ property.</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>Writ of Error to the Circuit Court for Columbia; ■county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

Writ of Error to the Circuit Court for ¡át. Johns county. Motions to vacate judgment and supersedeas. The facts in the case are stated in the opinion of the court.

<p>Appeal from the Circuit Court for St. Johns 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 iu the case are stated in the opinion of the 'court.</p>

<p>Appeal from the Circuit Court for Escambia 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>STATEMENT.</p> <p>Appellees sued appellant and obtained judgment in July, 1891, and the case is before us on appeal from the judgment entered.</p> <p>The declaration, in substance, alleged the steamship-company to be a corporation existing under the laws of the State of New York, and a common carrier of goods and chattels for hire in navigating a line steamships between the city of Jacksonville, Florida, and the city of New York, in the State of New York; that on the 4th day of March, 1890, plaintiffs at the request of defendant, caused to be shipped on the “Delaware,” one of the vessels of defendant, thirteen hundred shad fish, of the value of $254, in good order and condition, properly packed in ice, to be taken care of and safely carried by defendant from the city of Jacksonville to New York, and there to be safely delivered in like good order and condition; that inconsideration thereof, and of certain reward, defendant promised to take care of and safely carry and deliver said goods, and although it received the same to-be carried and delivered as aforesaid, and although a-reasonable time for the carrying and delivering of the-same had long since elapsed, yet it did not and would not take care of and safely deliver the goods, though no dangers of navigation prevented it from so doing,, but took so little and such bad care of such goods-whilst in its care and custody!that by and through its-negligence in not keeping said goods properly packed in ice, and its other negligence, the same were wholly-lost to plaintiffs.</p> <p>Defendant first filed two pleas — that it did not promise in the manner alleged, and that plaintiffs did not ship the goods mentioned on the “Delaware,” or any other vessel of defendant.</p> <p>The case was referred to a referee for trial, and at a-subsequent date a special plea was filed, to which a demurrer was directed. The demurrer was sustained, and it appears that amended pleas were filed. No-question is raised here as to the ruling on the demurrer to the special plea, and as it is made to appear that' the only pleas relied on, and upon which issue was-joined, were the amended pleas, we will refer only to-them.</p> <p>The first amended plea alleged that one of defendant’s steamships received, on or about the 4th day of March, 1890, from a steamer plying the St. John’s river, thirteen boxes of shad marked “ Caleb Haley & Co., New York City,” and sailed with the fish on board for New York, via Charleston, South Carolina;that the ship reached Charleston in due time, and upon arrival had the fish carefully and adequately reiced, and departed from said port on the 6th of March for New York; that the ship was seaworthy in-all respects, had a competent master, sufficient crew, and was supplied with the best appliances for being-properly navigated, and that the machinery and appliances were carefully tested before leaving port-, and found in good condition; that when off the coast of" North Carolina, while being properly navigated in the-usual way, and without delay, the vessel encountered ■a heavy northeast gale with a high and dangerous sea that loosened her rudder post at the bottom, rendering it impossible to navigate her, and that said accident was caused by the peril of the sea, and without negligence or lack of care and management on the part of defendant; that by reason of said casualty the ship was prevented from completing her voyage on schedule time, and was compelled to put into the small town of Southport, North Carolina, and procure the services -of a diver to .secure the rudder post with chains, and while in said port diligent effort was made to procure ice for the protection of the fish, but none could there be had; that the ship departed for New York on the 11th of March, 1890, under a convoy steamer, and the casualty mentioned was unavoidable, and caused an inevitable delay, by reason of which the fish spoiled and became unfit for use, and the decay was due to the intrinsic tendency of the fish to spoil, and not through any negligence of defendant. It was further alleged that the defendant was without sufficient quantity of ice for preserving fish for such an unusual and unforeseen delay, and could not procure it, and that the fish became unfit for use, offensive, and dangerous to the health of the passengers, and had to be thrown overboard.</p> <p>The second plea alleged that the fish were perishable property, carried at the owners’ risk of damage arising from natural causes, and that they decayed and spoiled by reason of the inherent quality of the same, which was a natural cause, by reason of which and inherent defects they became a total loss.</p> <p>Plaintiffs joined issue on the foregoing pleas, and the trial was had thereon.</p> <p>The other facts necessary to be stated will appear in ■the opinion.</p>

STATEMENT. Appellants instituted suit in 1889 against R. S. Williams, who died pending the suit, and it was revived against his executrix. The trial resulted in a judgment in defendant’s favor, and an appeal was entered.

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

STATEMENT. Appellant was plaintiff, and appellees were defendants, in the Circuit Court.

<p>Writ oí Error to the Circuit Court for Duval county.</p> <p>STATEMENT.</p> <p>This is a proceeding by mandamus, instituted by the-City of Jacksonville against the County Commissioners of Duval county, to require them to turn over to the municipal authorities of said city one-half of the amount realized from a special tax for public roads- and bridges levied and collected on the property within the corporate limits of said city, under section 17, Chapter 4014, laws of 1891.</p> <p>It is alleged in the alternative writ that the Board of County Commissioners of Duval county deemed it advissible and for the public good, and at the times for levying taxes for county purposes for the years 1891, 1892,1893 and 1894, respectively, levied, by virtue of section 17, Chapter 4014 laws of Florida, a special tax for public roads and bridges on all the real and personal property in Duval county subject to taxation, and which was assessed and collected as other taxes of -the county and paid into the county treasury as a special fund as required by the law. That a large-amount of said special tax levied for the years mentioned, and collected and paid into the county treasury, amounting to more than $19,000, was assessed, levied and collected on property in the city of J acksonville, exactly how much was so realized the city was not able to say, because of the fact that all books and papers containing such information were in the custody and control of the county officials of said county,, but the city shows that there had been realized from, such source for the years mentioned the sum of $18,-050.76, as appeared by a sworn abstract made from the-tax collector’s books by the tax collector, and attached as an exhibit. It is further averred that the exact amount realized from such special tax on the property in the city of Jacksonville and required by the act mentioned to be turned over to her municipal authorities was, or should be known by the County Commissioners, and they could ascertain correctly from books and papers in their possession the exact amount so realized. That of the amount of money realized from said special tax on property in the city of Jacksonville, the sum of $2,709.05 was by warrant dated June 1st, 1892, turned over to the city by order of the Board of County Commissioners of said county, and no other of said moneys so realized had been turned over to said city as required by law. That the municipal authorities had caused the matter to be called to the attention of the said County Commissioners, and had demanded that the money due the city from the said taxes be turned over to the municipal authorities, and that the commissioners account to the city for one-half of the amount so realized from property in the city, but that they had refused to do so. It was also alleged that the city was in urgent need of the moneys so due, to be used in the repairing, working, improving and laying out the streets of the city, as prescribed by ordinances.</p> <p>A motion was made to quash the alternative writ on the grounds, among others, that it was not the duty of respondents to turn over to relator any portion of the taxes collected for public roads and bridges. Relator’s claim was an unliquidated demand. That it did not appear that respondents had ever been furnished with, or were in possession of, information as to the amount of alleged taxes collected for roads and bridges, so as to enable them to turn over any amount to relator. The writ was otherwise uncertain, evasive and insufficient. That section 17 of Chapter 4014 is in violation of section 5 of Article IX of the Constitution. That section 17 of Chapter 4044 is in violation of the Constitution. That the proviso to section 17 of Chapter 4014 was inoperative and void under the Constitution.</p> <p>The motion was overruled, and respondents answered, admitting that the Board of County Commissioners for said county levied a tax for the years mentioned for public roads and bridges on the property of the ■county subject to taxation, under section 17of Chapter •4014 laws of Florida, but it is denied that the statement in the alternative writ as to the amount of the taxes collected on the property within the city was correct, and' the amount collected for the years 1891, 1892 and 1893 is stated to be $16,911.58, and deducting from this amount what had been paid left $5,746.74. Respondents had made every effort to get the amount collected for the year 1894, but had been unable to do so, on account of the usurpation of the office of tax collector by a party named, and the delay in paying taxes, and the confusion in reference to the same in consequence -of the usurpation of said office. Respondents further .aver that no demand was made upon them for any proportion of the taxes collected for public roads and bridges, except that at a meeting of the Board in Janmary, 1895, the city recorder sent to the board a statement claiming the amount of the levy for roads and bridges on property within the city limits for the years 1891, 1892 and 1893, and requested payment of oneIhalf of such sum- to the city; that such statement failed to show the amount of such taxes collected, and was returned to the recorder for collector, and no demand except as stated having been ■ made upon respondents, and the whole amount collected for roads .and bridges being required for the purpose of keeping the roads and bridges of the county in good repair, «specially by reason of the damage done to them by tile severe storms of 1893 and 1894, said funds were used by the county for that purpose, except $758.91 then in the hands of the treasurer to the credit of the road and bridge fund of the county.</p> <p>As a plea to so much of the writ as involves the taxes for 1892, it is alleged that the claim was not presented to the Board of County Commissioners within one year from the time the same became due. It is also alleged that the provision for the payment of any portion of the tax collected for roads and bridges to the city is unconstitutional and void.</p> <p>On motion of relator for peremptory writ, the same was awarded, and respondents commanded to turn over to the municipal authorities of the city of Jacksonville the sum of $5,746.74, being one-half of the amount admitted by the return to have been realized from the special tax for public roads and bridges, levied by virtue of section 17 of Chapter 4014 laws of Florida, on property in the city of Jacksonville, after deducting the sum of $2,709.05, the amount paid in June, 1892. Respondents were also commanded to render an account and pay over to the city authorities the balance of one-half the exact amount realized and paid into the county treasury of Duval county from said special tax for the years 1891, 1892, 1893 and 1894.</p> <p>The errors assigned are the overruling the motion to quash, and in granting the peremptory writ.</p>

STATEMENT. The appellant company, a corporation existing under the laws of Florida, was complainant in the Circuit Court, and owned an electric plant of the value of 330,000, and subject to taxation, in the city of Jacksonville.

<p>1. In case of the death of a co-tenant, his or her heirs or devisees become co-tenants with the other joint owners, and where such death hapxiens during the pendency of a suit for partition, it is necessary that the heirs or devisees be made parties defendant before proceeding with the partition.</p> <p>2. At common law an executor equally with an administrator is the representative of the personalty only, and where it is not shown that by the will ithe executors are invested with and authorized to represent the title, they are not proper parties to represent the heir or devisee in partition proceedings.</p> <p>3. The rights and interests of necessary and indispensable parties can not be adjudicated when they are not properly before the court.</p>

<p>Appeal from the Circuit Court for Hamilton 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>

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

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

Writ of Error to the Circuit Court for Marion county. STATEMENT. In 1888 L. N. Green instituted an action of assumpsit against Delos II. Bacon, Adolphus IT.

Writ of Error to tlie Circuit.Court for Marion county. STATEMENT. The original declaration in this cause was filed by defendant in error, Green, against Mark R. Bacon, plaintiff in error, and Delos EL Bacon and Adolphus EL Bacon.

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

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

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

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

<p>Appeal from the Circuit Court for St. Johns and Duval counties.</p> <p>The facts in the cases 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>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>Appeal from the Circuit Court for Escambia county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

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

<p>Failure to attach cause of action to declaration not ground OF DEMURRER — ACCOUNT STATED — CONCLUSIVENESS OF — PROMISE TO PAY DEBT OF ANOTHER MUST BE IN WRITING — ACCOUNT RENDERED — WHEN BECOMES AN ACCOUNT STATED.</p> <p>1. The failure of the plaintiff to attach a copy of his cause of action to his declaration, can not be taken advantage of by demurrer to such declaration. The defendant’s remedy in such a case is to refuse to plead until such cause of action is filed.</p> <p>2. Where an account made out against a firm is presented to one of the partners in such firm, and is agreed to by him as being correct in the amount it represents to be due, such agreement, while it might be binding jointly upon the firm as an account stated to it, can not operate as a release of the joint liability of the firm thereon so as to authorize a suit upon said account against the partner individually and alone to whom the same was presented.</p> <p>3. A stated account never gives to a party claiming under it the benefit of an absolute estoppel. It establishes prima facie the correctness of the items, and unless this presumption is overcome by proof of fraud, mistake or error, it becomes conclusive; but that an account stated may be impeached for fraud, mistake or error, is well settled. The party impeaching it, however, has the affirmative of the issue and the burden of proof.</p> <p>4. A party can not by verbally agreeing to the correctness of an account stated to him, and verbally promising to pay the same, legally bind himself to pay any items of indebtedness included therein that are due by another, and for which he is in no way responsible except through such verbal promise. But when sued upon such account, as upon an account stated, he can show that items therein are the indebtedness of another for which he is not responsible; and as to such items the plaintiff can not recover unless he can show a promise in writing signed by the defendant to pay the same.</p> <p>Where an account is made up and rendered by one person to another, he who receives it is bound to examine it and state his objections thereto, and if he does not object within a reasonable time it will be treated, under ordinary circumstances, as being presumptively, by acquiescence, a stated account; the presumption of the party’s acquiescence from his silence depending in large measure for its force upon the circumstances of the case, whether the party is a man of business, considering the nature of his business and education, their local situation, customary dealings with each other, and other circumstances-. What is a reasonable time within which the person to whom an account is rendered must object or become bound depends upon the relations of the parties and the usual course of business between them. The question of what is a reasonable time within which the party must object in such cases is -one of law for the court to determine in every case, dependent, however, upon the facts proved, the latter to be passed upon by the jury. In such cases, therefore, 4it is proper always for the court to instruct the jury as to the law upon the several hypotheses of fact insisted upon by the parties in the premises.</p>

<p>1. A general appearance in a suit waves all questions as to service of process, and amounts to a submission of the person of the defendant to the jurisdiction of the court.</p> <p>2. After a general appearance a defendant may plead his personal privilege under the statute of being sued in the county of his residence, or in the county in which the cause of action accrued; but after such appearance a defendant can not properly plead that service was had on him in a different judicial circuit than that in which the suit was instituted, where it appeared that the cause of action accrued in the county and circuit where suit was instituted.</p> <p>S. After a general appearance a defendant can not limit or restrict such appearance in a plea subsequently filed.</p> <p>4. A second plea alleged all the averments of a first plea and more; the first pléa was stricken out and trial had on the second: Held, In the absence of a bill of exceptions showing that defendant was deprived of any advantages under the plea upon which trial was had that he would have had if the first had been permitted to stand, no injury was shown by striking out the plea, though it might not have been the proper way to reach it.</p> <p>5. There is a difference between a motion to strike'out and a demurrer to a plea, and trial courts should not disregard the distinction.</p>

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

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

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

<p>Constitutional exemption — jurisdiction in equity — tort to PROPERTY CONDITIONALLY SOLD — WHO CAN RECOVER FOR — BOND CN INJUNCTIONS IN EXEMPTION CASES.</p> <p>Í. Where a party sells a horse to another upon the condition that it is to remain the property of the vendor until paid for, and such horse is wrongfully killed by a railroad tram while in the possession of such vendee, either the vendor or conditional vendee can sue for and recover damages for such tort; but a recovery by either will be a bar to any further recovery by the other. If the conditional vendee, in such a case, sues and recovers for the tort, the vendor then acquires a right of action against him for moneys had and received for his use and benefit to the extent of the amount originally agreed to be paid by the conditional vende for the purchase of the horse. The horse killed by the train, in such a case, loses its property identity upon being killed; and, if the conditional vendee purchases another horse with the moneys collected as damages from the railroad company committing the tort, the vendor of the horse killed does not become the owner of the new horse so purchased; neither does he acquire any equitable lien upon him for the purchase money due for the horse that was killed. In such a case, the party purchasing the new horse with moneys collected as damages in tort for the one killed is the absolute owner of the new horse so purchased, and can exempt him under our Constitution from forced sale, as against the vendor of the horse that was killed, under a distress warrant for rent and advancements of supplies.</p> <p>2, Where a bill in equity alleges that the complainant therein is the head of a family residing in this State; that he did not own personal property exceeding one thousand dollars in value; that a distress warrant for rent had been levied upon his personal property other than agricultural products raised upon, the land for which the rent was due; and that the property levied on is exempt to him under the Constitution of this State; and such bill prays for an adjudication of his right of exemption of such property, and that it be set apart to h m as exempt^from seizure and sale under such process: and that an injunction be ilgranted to restrain the sale of such exempt property, such bill is sufficient in its allegations to entitle the complainant to the interposition of the court of equity to grant the relief prayed, under the provisions of Chapter 3246 laws, approved March 7th, 1881, entitled “An act to enlarge the equity jurisdiction of the Circuit Courts.”</p> <p>3. Injunctions granted simply to restrain the forced sale of property claimed to be exempt from sale under the Constitution, are not injunctions to stay proceedings at law, within the meaning of the statute prohibiting the granting of injunctions to stay proceedings at law unless bond is given. Upon the granting of injunctions under the provisions of Chapter 3246 laws, approved March 7th, 1881, to restrain the sale of property exempt under the Constitution, no bond is ordinarily necessary to be required. There is nothing in the last named statute, however, that will abridge the discretionary power of the chancellor to grant the injunction in such cases upon such conditions as to bond, etc., as the circumstances of the cases may seem to require.</p>

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

<p>1. A deed without any evidence of the possession by the grantor of the premises conveyed is not sufficient evidence of title to warrant a recovery in an action of ejectment. The giving of a deed to the premises is no evidence of title in the grantor.</p> <p>2. In an action of ejectment where the reliance of the plaintiff is-exclusively upon a paper title, it is not sufficient to show possession by a grantor at some remote period, but he must have-been in possession at or near the time of the execution of the deed by him.</p> <p>3. In such a case it is necessary for the plaintiff to trace his title back to the ultimate source of title, or to a grantor in actual possession.</p> <p>4. It is extremely doubtful whether testimony in haeo verba that a. party was in possession of lands is of any weight. Possession may often be a matter of opinion. In proving possession of land the facts should be shown which in law constitute possession.</p> <p>5. Recitals in deeds do not bind strangers holding adversely and¡ claiming title by adverse possession. The making of contracts-to sell land is not of itself evidence of possession.</p>

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

<p>Appeál from the Circuit Court for Hillsborough 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 iu the case are stated in the opinion of the 'court.</p>

<p>1. The acknowledgment of a deed can not be taken by a grantee, or party interested therein.</p> <p>2. It is not necessary that a director or managing agent of a corporation should be a stockholder therein unless.it is expressly required by statute or charter of the company.</p> <p>3. In a suit to foreclose a mortgage executed to a corporation organized under the general laws in force prior to June, 1888, it appeared that the acknowledgment of the mortgage was taken by the vice-president of the corporation, and the court ruled that as he was vice-president he must have been a stockholder and a party interested in the mortgage, and forthat reason the instrument was not acknowledged at all: Held, That the conelusion, from the fact stated was erroneous.</p>

<p>Appeal from the Circuit Court for Hillsborough, county.</p> <p>STATEMENT.</p> <p>The object of the bill in this case is the foreclosure of certain mortgages on real estate. It was originally filed, by appellants, Charles B. Rogers and Edward A. Champlain, partners under the firm name of C. B. Rogers & Co., against James K. Munnerlyn and wife, and Fred. Thompson, as assignee, but subsequently Samuel H. Eckman and Abram Yetsburg, composing the firm of Eckman & Yetsburg, and Jacob R. Einstein in his own right, and as surviving partner of Einstein & Lehman, were made parties defendant.</p> <p>The bill alleges that in November, 1885, James K. Munnerlyn was indebted to complainants in the sum of four thousand dollars, evidenced by four notes, each for one thousand dollars, bearing date the 12th of November, 1885, and due respectively six, twelve, eighteen and twenty-four months after date, with interest at the rate of eight per cent, per annum from date; and to secure the same, Munnerlyn and wife on the 19th of December, 1885, executed to. complainant a. mortgage.</p> <p>The mortgage embraced lot six (6) in Block three (3) of Dwight’s subdivision of the town of Clear Water Harbor, Hillsborough county, being part of section 16, Township 29, south of Range 15 east, as surveyed by C. E. Worth and recorded in book “K” page 531 of the records of said eoupty; also one wharf extending out into the waters of said harbor from the foot of Center (now Cleveland) street, and joining- the said lot. This mortgage also embraced a stock of merchandise-in a store on said lot, though no foreclosure as to the merchandise is asked for in this suit. The mortgage was duly executed, but not recorded in Hillsborough county until the 20th day of September, 1888. It is alleged that the interest on the notes up to November 12th, 1887, was paid, but no part of the principal, or interest subsequent to said date had been paid, and that on the 13th of December, 1888, defendant Munnerlyn, in consideration of the principal sum of $4,000, and $320 interest due on said notes, executed to complainants four notes, each for $1,080, dated December 13th, 1888, and due respectively six, twelve, eighteen and twenty-four months after date, and that said notes evidenced the same indebtedness as those of November 12th, 1885, except the sum of $320, which was interest due at the time of making the last notes. That to secure the notes executed on the 13th of December, 1888, Munnerlyn and wife executed a mortgage of that date on the same lot and wharf described in the first mortgage, and it is recited therein that it was made “as a protanto correction and confirmation of, and to secure the payment of the same indebtedness mentioned in the mortgage deed made by the said parties of the first part to C. B. Rogers & Co., dated December 19th, 1885, and recorded in book “G,” page 335, in the records of said county, which mortgage deed was defective, in that it failed to properly describe the mortgagees who were described by their firm name, instead of as individuals.” This second mortgage, dated December 13th, 1888, was recorded on the 18th day of that month.</p> <p>It is further alleged that on the 21st of December, 1888, Munnerlyn and wife executed another mortgage to further secure the notes bearing date December 13th, 1888, and the lots described in this mortgage are three (3), four (4), five (5) and seven (7) in Block three (3) of Dwight’s subdivision of the town of Clear Water Harbor, being part of section 16, Township 29, south of range 15 east, as surveyed and recorded in book “K,” page 531 of the records of Hillsborough county. This mortgage was recorded on the 31st day of December, 1888. It is also alleged that on the 31st day of December’, 1888, James K. Munnerlyn executed to defendant Thompson a deed of assignment, whereby the former conveyed all his property, real and personal, except his homestead exemption, to the latter in trust for the benefit of .the former’s creditors. The deed of assignment conveys a. stock of goods in a store in Clear Water Harbor, the lots and wharf described in the .mortgages to the complainants, and which lots and wharf are conveyed subject to the said mortgages, and also certain other real estate in Hillsborough county. Various creditors are preferred in the deed of assignment, the complainants being the first. The mortgages, notes and deed of assignment referred to are filed with the bill and made a part of it.</p> <p>As to defendants Eckman & Vetsburg and Jacob R. Einstein, subsequently made defendants to the bill, it is alleged that the former, on the 10th of December, 1888, sued out of the Circuit Court for Hillsborough county a writ of attachment against the estate of Munnerlyn, and which was on the same levied upon lots 2, 3, 4, 5, 6 and 7 of block 3 of Dwight’s subdivision of Clear Water Harbor, in section 16, township 29, range 15 east, as recorded in book “K,” page 530 of the records of said county, and a Avarehouse and wharf extending from lot 6 into said harbor; that on December 26th, 1888, said firm sued out another writ of attachment against Munnerlyn, which was levied, on the 28th of said month, upon the same property. That the late firm of Einstein & Lehman, of which Jacob R. Einstein was surviving member, sued out an attachment from the Circuit Court of Hillsborough county against Munnerlyn, and this writ was levied, on the 28th of the same month on the same real estate embraced in mortgages executed to complainants. That on the 26th of January, 1889, said attachments came on to be heard before the Circuit Judge on motion to dissolve, and the same were dissolved, and said parties, Eckman & Vetsburg and Einstein, appealed to the Supreme Court, where the said appeals were pending at the time of filing the bill.</p> <p>It is further alleged that the mortgage lien of December 19th, 1885, on lot 6 and the wharf therein described Avas superior to the attachment lien of defenda'nts, Eckman & Yetsburg, levied December 10th, 1888, and that the mortgages of the complainants, •dated December 13th and 21st, 1888, were superior to said attachment lien of Eckman & Vetsburg, levied December 28th, 1888, on lots 2, 3, 4, 5, 6, and 7, and -also superior to the attachment lien of Einstein & Lehman of date December 28th, 1888.</p> <p>Decree pro confes so was entered against the Munnerlyns and Thompson, and the other defendants answered. The answer of Eckman & Yetsburg alleges that James K. Munnerlyn became indebted to them for goods, wares and merchandise furnished to him in his business as a merchant, and that on the 10th of December, 1888, they sued out an attachment on a statutory ground mentioned, which was levied, on that date, upon the property alleged in the bill. It is also alleged that the mortgage bearing date December 19th, 1885, was fraudulent and void as to said defendants, because it embraced a stock of merchandise and the ■said mortgagor was permitted to remain in possession of the goods and sell the same at pleasure, and use the proceeds arising therefrom for his own benefit; also that said mortgage was executed on the 19th of December, 1885, and not recorded until the 20th of September, 1888. Further, that the mortgages dated the 13th and 21st of December, 1888, and the deed of assignment dated December 21st, 1888,'are all subsequent to the attachment liens acquired by defendants, and that the subsequent mortgages are part and parcel of the same fraudulent transaction, and were all executed for the purpose of perfecting and maintaining the fraudulent lien attempted to be created by the first mortgage mentioned. That defendant had no knowledge of said mortgage until recorded in September, 1888, and that it was a fraud upon the creditors of Munnerlyn, as he was left in possession of the property and acquired credit upon the faith thereof. The-second levy of an attachment on, the property of Munnerlyn is admitted, and it is alleged that the liens of the mortgages attached to the bill are subsequent to the attachment lien for the reasons stated. The-dissolution of the attachments and the appeals are admitted.</p> <p>The answer of Einstein alleges the suing out and levy of his attachment writ on the 26th of December,. 1888, and in other respects his answer is, in substance, the same as that filed by Eckman & Yetsburg.</p> <p>■ On final hearing upon bill, answers and proofs, the-court dismissed the bill and complainant appealed.</p> <p>Other facts are stated in the opinion.</p>

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

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

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

<p>Appeal from tlie Circuit Court for Hamilton 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>

STATEMENT. A bill in chancery filed in this case by appellee against appellant alleges, in substance, that the complainant and one Robert T. Hall, prior to the 20th day of September, 1890, were engaged in the business of producing and manufacturing naval stores, resin and spirits of turpentine in Suwannee county, and became indebted to their commission merchants, Ellis, Young & Co., in a sum of money which they could not at the time pay, and in order to pay and fully settle…

,STATEMENT. Appellees, John A. Gilbert, W. S. Louderback and Edwin S. Sweet, as partners under the firm name of Louderback, Gilbert & Co., filed a bill against Andrew J. Eose and appellant James L. Clarkson, and therein alleged that on or about the 9th of day of December, 1886, defendant Eose applied to one E. W. Sigsbee, a contractor, builder and furnisher of materials, to build for him, Eose, a dwelling house on premises hereinafter named, and thereupon Sigsbee and Eose…

<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>

Writ of Error to tlie Circuit Court for Columbia •county. Tlie facts in the case are stated in the opinion of the court.

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