Volume 52 — Florida Reports

<p>This case was decided by Division B.</p> <p>Writ of error to the Criminal Court of Record for Duval County.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

This case was decided by Division A. Writ of error to the Circuit Court for Osceola County. The facts in the case are stated in the opinion of the Court.

This case was decided by Division B. Writ of error to the Circuit Court for Madison County. The facts in the case are stated in the opinion of the Court.

This case was decided by Division B. Writ of Error to the Circuit Court for DeSoto County. The facts in the case are stated in the opinion of the Court.

<p>This case was decided by Division B.</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>

This case was decided by the court En Banc. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the. opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for St. Johns County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Criminal Court of Record for Hillsborough County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Pasco County. The facts in the case are stated in the opinion of the Court.

This case was decided by Division A. Writ of error to the Circuit Court for Santa Rosa County. The facts in the case are stated in the opinion of the Court.

<p>This case was decided by the Court En Banc.</p> <p>Writ of error to the Circuit Court for Jackson County.</p>

This case was decided by Division A. Writ of Error to the Circuit Court for Calhoun County The facts in the case are stated in the Opinion of the Court.

<p>This case was decided by Division A., 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>

This case was decided by Division B. Writ of error to the Criminal Court of Record for Escambia County. The facts in the case are stated in the opinion of the court.

This case was decided by the court en banc. Writ of error to the Circuit Court for Gadsden County. STATEMENT.

<p>This case was decided by the Court En Banc.</p> <p>The facts in the case are stated in the Opinion of the Court.</p>

<p>This case was decided by the Court En Banc.</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>

This case was decided by the Court En Banc. Writ of Error to the Circuit Court for Duval County. The facts in the case are stated in the Opinion of the Court.

This case was decided by the Court En Banc. Writ of Error in the Circuit Court for Orange County. The facts in the case are stated in the opinion of the Court.

This case was decided by Division A. Writ of error to the circuit court for Duval county. The facts in the case are stated in the opinion of the court.

<p>1. The Legislature can not authorize the payment for other than county purposes; of money" derived from taxes assessed and imposed by a county, since such authority would be in conflict with the manifest purpose and intention of the constitutional provision that “the Legislature shall authorize the several counties * * * in. the State to assess and impose taxes for county * * * purposes, and for no other purposes.”</p> <p>2. It is the duty of the courts to construe legislative acts with reference to the constitution, and if the constitution is clearly violated by a provision of a statute, such provision should be declared inoperative; but, if the provision is not clearly in conflict with the constitution, or if there is a well founded or reasonable doubt as to the constitutionality of the provision the legislative will as expressed therein should be sustained.</p> <p>3. Whether an expenditure demanded to be made from the funds derived by a county from taxes assessed and imposed by it by virtue of legislation under the constitution, is or is not for a county purpose, is to be determined by the courts from the facts and circumstances of each particular case; but when an expenditure is authorized by the legislature as being a county purpose, the courts will not interfere except in case free from all reasonable doubt.</p> <p>4. Where a county purpose has been designated by a statute which directs that expenses incurred by certain officers for the protection of ports, harbors, bays and rivers within the county, shall be audited and paid by the county commissioners as other charges against the county are audited and paid, such designation of a county purpose will, in deference to the legislative department, be recognized and enforced by the courts unless it clearly appears that it is not a county purpose within the meaning of the constitution.</p> <p>5. If the payment demanded of a county is for a county purpose, the particular officers engaged and methods used under a statute in incurring the expenditure do not affect its character as a county purpose.</p> <p>6. A river, harbor or bay of a port is a public highway, useful to the people of the county in which it is situated for the purposes of navigation and commerce. The depth of the water therein is one of the chief elements of it’s value, and its protection from injury by being filed in, is within the purposes for which county governments are established, even though the river, harbor or bay be also and largely used for passage to and from, and for commerce with, points beyond the county.</p> <p>7. It is competent for the State acting through the counties to protect the ports, harbors, bays and rivers therein if the control of the general government within its sphere is not thereby interfered with.</p> <p>8. Under the constitution the powers and duties of the county commissioners are prescribed by statute and the statute does not give them exclusive police or other supervision over the ports or harbors of the State. The legislature may provide for the exercise of such powers within a county by officials other than the coun-ty commissioners.</p> <p>9. Section 950 of the Revised Statutes of 1892, Section 1302 of the General Statutes of 1906, which requires the Board of Pilot Commissioners of each port to take such steps as are necessary to detect any violation within their jurisdiction of the laws for the protection of ports, harbors, bays and rivers, and requires the county commissioners to audit and pay the expenses so incurred by the Board of Pilot Commissioners, as other charges against the county are audited and paid, is a valid enactment for the purposes therein stated.</p> <p>10. The constitution does not require that the Legislature shall impose a limitation upon expenditures incurred for county purposes, and in the absence of such a limitation the Legislature has plenary power within proper county purposes.</p> <p>11. Under Section 950 of the Revised Statutes of 1892, Section 1302, of the General Statutes of 1906, the necessity for incurring expenses in detecting any violation of the law for the protection of ports, harbors, bays and rivers-is to be determined by the Board of Pilot Commissioners and no duty with reference thereto is imposed upon the county commissioners except that of auditing and paying for such expenses.</p> <p>12. The fact that the greater part of a port or harbor is. within ’ the corporate limits of a city and is under the protection of the police department of the city, does not relieve the county of its powers and duties with reference to the protection of the port or bay or harbor within its territory.</p> <p>13. Even if a harbor lies within the corporate limits of more than one county and is under the police protection of both counties, the State is not thereby precluded from providing for the protection of the portion of the harbor in one of such counties at the expense of the county.</p> <p>14. When an expenditure by a county is authorized by a valid law and the correctness of the amount due by the county is ascertained and approved as the law directs, there being no question as to ~bona fides, it is the duty of the county commissioners to audit, approve and pay the same, and such payment may be enforced by mandamus.</p>

This case was decided by Division A. Writ of error to the Circuit Court for Duval County. STATEMENT. On January 1st, 1906, the plaintiff in error filed in the Circuit Court for Duval County a declaration as follows: “In Circuit Court, 1th Judicial Circuit, County of Duval, State of Florida. James E. T. Bowden, v. City of Jacksonville, a municipal corporation, existing under the. laws of the State of Florida.- — Trespass on the case. Damages $25,000.00.— Declaration.

This case was decided by Division B. Writ of error to the Circuit Court for Escambia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the circuit court for Columbia county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the circuit court for Suwannee county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Holmes County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

This case was decided by the Court En Banc. Writ of error to the Circuit Court for Hillsborough County. The facts in the case áre stated in the opinion of the Court.

This case was decided by Division A. Writ of Error to the Circuit Court for Escambia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of Error to the Circuit Court for Alachua County. The facts in the case are stated in the opinion of the Court.

This case was decided by Division A. Writ of Error to the Circuit Court for Escambia County. The facts in the case are stated in the Opinion of the Court.

<p>1. A declaration in an action at law should alleged distinctly every fact that is essential to the plaintiff’s right of action.</p> <p>2. Where an action is brought to recover damages for the breach of an executory contract containing mutual undertakings and those on the part of the plaintiff are to be performed before the defendants are to perform their part, the declaration should allege a performance by the plaintiffs .of their undertakings, or a sufficient excuse for non-performance, and an allegation that it was the duty of the defendants under said contract to perform their part, without stating the facts imposing such duty, is not equivalent to an allegation that the plaintiffs had performed their part.</p> <p>3. The statute and rule which require the contract upon which suit was brought, or a copy thereof, to be filed with the declaration, do not make the contract so filed a part of the pleading, and a copy of the contract annexed as an exhibit to a declaration can not on demurrer be used to supply an essential allegation of fact omitted from the declaration.</p> <p>4. In an action for the breach of a contract to buy and move lumber cut “in accordance with sizes and prices in said contract stated,” in the absence of an allegation that the plaintiffs cut the lumber “in accordance with the sizes and prices in said contract stated,” and of a legal excuse for not doing so, and there is no general allegation of performance by the plaintiffs, the declaraation is demurrable.</p> <p>5. In an action for breach of contract, an allegation in a count of the declaration of duty and obligation of the defendants under the contract, is a mere conclusion, and where the court does not contain allegations of fact showing the duty and obligation it is demurrable.</p> <p>6. In an action for breach of contract allegations as to what the parties contemplated and intended can not vary the terms of the' contract sued on.</p> <p>7. In an action for breach of a contract to buy and move “all the lumber cut by plaintiffs’ mill * * * in accordance with sizes and prices in said contract stated,” an allegation that the defendants refused to move “lumber cut by plaintiffs for defendants under the said contract” is not the equivalent of an allegation of refusal to move lumber cut “in accordance with, sizes and prices in the said contract stated,” and when the count contain® no other allegations sufficiently stating the breach it is demurrable.</p> <p>8. A count in a declaration in an action for a breach of contract to buy and move lumber cut “upon terms and conditions agreed upon,” which contains no allegations as to what wore the terms and conditions and of facts showing a breach of the contract, is demurrable.</p>

This case was decided by the Court En Banc. Writ of error to the Circuit Court for Lake County. The facts in the case are stated in the opinion of the Court.

This case was decided by Division A. Writ of error to the Circuit Court for Volusia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Hillsborough County. STATEMENT.

<p>1. Under the provisions of Chapter 4723, Acts of 1899, only final judgments and decrees rendered and entered in the Circuit Courts of this State and certified copies thereof are admissible as prima facie evidence of the entry and validity of such judgments and decrees. This statute does not apply to judgments rendered by a justice of the peace and docketed in the office of the clerk of the Circuit Court as provided by Section 1624, Revised Statutes of 1892.</p> <p>2. A judgment upon confession before a justice of the peace, which fails to show the cause of action or indebtedness as required by Section 1623, Revised Statutes of 1892, is void.</p>

This case was decided by Division B. Writ of error to the Circuit Court for DeSoto County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Bradford County. STATEMENT. The plaintiff in error was convicted in the Circuit Court for Bradford county upon an information under Chapter 4960 acts of 1901, charging him with selling liquor in said county on or about August 26th, 1905, after an election had been held in the county forbidding the sale of liquor therein.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Madison County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Taylor County. The facts in the case are stated in the opinion of the court.

This case was.decided by the Court En Banc. Appeal from the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division B.</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>

This case was decided by Division B. Appeal from the Circuit Court for Escambia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the Court.

<p>1. An agreement that a deed conveying land shall operate as a mortgage to secure a debt is not within the statute of frauds, since it is not a contract for the sale of lands or any interest therein. It is a right reserved by the grantor to redeem the land upon the payment of the debt. This right is recognized by the statute and is not required to> be evidenced by writing.</p> <p>2. The relations existing between the parties at the time of its execution may be considered in determining whether a deed of conveyance of land absolute on its face was intended to operate as a mortgage to secure the payment of a debt.</p> <p>S. Where an agent of a creditor is authorized to foreclose a mortgage on land and to secure a settlement of the indebtedness, and the agent instead of foreclosing the mort-. gage takes a conveyance of the land to his principal with an agreement that the rents from the land are to be applied to the debt, and that the land will be reconveyed to the debtor when he pays the debt, and the creditor accepts and retains the conveyance, he does so subject to the conditions that properly render it a mortgage, especially when the consideration for the conveyance was only the principal of the unpaid debt.</p> <p>■i. In order to carry out the intention of the parties and to prevent fraud and imposition and to promote justice, parol evidence is admissible to show that a deed of conveyance of land absolute upon its face was intended to operate as a mortgage; and where it is shown that such a conveyance was executed to secure the payment ol money, equity will treat it as a mortgage and will decree a reconveyance upon accounting and settlement.</p> <p>5. In a suit to have a deed conveying land adjudged to be a mortgage and for a reconveyance upon accounting and settlement, where it is admitted that the debt existed, find that the deed was executed to prevent the foreclosure of a mortgage upon the same land for such indebte.lness, and no consideration for the conveyance other than ihe debt is shown, and there is ample evidence to sustain the finding of the chancellor that the deed was intended, to secure the payment of the debt, a decree holding the deed to be a mortgage and directing an accounting before a master will not be disturbed on appeal on the ground that the proof is not clear, convincing and positive.</p>

This case was decided by Division A. Appeal from the Circuit Court for Washington County. The facts in the case are stated in the Opinion of the Court.

This case was decided by Division A. Appeal from the Circuit Court for Sumter County. STATEMENT.

This case was decided by Division A. Appeal from the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

<p>1. An answer is not “impertinent” which is relevant or which can influence the decision of the suit, either as to the subject-matter of the controversy, the particular relief to be given, or as to costs.</p> <p>2. An exception to an answer should be overruled if it be too broad or if the sustaining of it would falsify or mutilate the remainder of the answer.</p> <p>3. To justify an exception for impertinence it must clearly appear that the matter excepted to is wholly irrelevant.</p> <p>4. Where a bill alleges unnecessary facts tending to reflect upon defendant’s integrity, an answer responsive to such allegations is not impertinent.</p>

This case was decided by Division A. Appeal from the Circuit Court for Monroe County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Manatee County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the Court.

<p>This case was decided by Division A.</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>

This case was decided by the Court En Banc. Appeal from the Circuit Court for Lake County. The facts in the case are stated in the opinion of the Court.

This case was decided by the court En Banc. Appeal from the Circuit Court for Walton County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appeal from the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Court En Banc.</p>

This case was decided by the Court En Banc. Appeal from the Circuit Court for Marion County. STATEMENT.

This case was decided by Division B. Appeal from the Circuit Court for Polk County. STATEMENT.

This case was decided by the court En Banc. Appeal from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division B.</p> <p>Appeal from the Circuit Court for Duval County.</p> <p>STATEMENT.</p> <p>On the 24th day of September, 1903, the city of Jacksonville filed its bill of complaint against J. M. DeWallj The Southern Development Company, George Reid, et al., to enforce its lien for unpaid taxes on certain real estate described therein. George C. Motes, one of the defendants, filed a disclaimer of any interest; George Reid, The Southern Development Company and James Johnson filed answers setting up their respective interests in the property, to which a replication was filed. All other defendants made default.</p> <p>On the 2nd day of November, 1904, the court made and entered a final decree in favor of the city, directing a sale of the property in question, and decreeing that the master pay any excess from the sale, after paying the amount decreed in favor of the city, into the registry of the court to abide the further order of the , court. The order of sale was confirmed.</p> <p>On December 16th, 19'04, The Southern Development Company filed its petition to be paid the surplus in the treasury of tlie court, alleging that it was the owner-of the property in question, to-wit: the south half of lot one in block thirteen, Springfield, a part of the city of Jacksonville, Duval County, Florida, by virtue of a tax deed duly executed and recorded, said deed "being based on tax sale certificate number 578 of the sale of 1898, for the non-payment of taxes for the 3’ear 1897. It ivas further alleged that after the execution and delivery of said deed to it, The Southern Development Company went into the actual possession of the said property under said deed on the 3rd day of September, 1903, and has been in the actual, peaceable possession of said premises from the 3rd day of September, 1903, to the date of the execution and delivery of the master’s deed in this cause, and has bona -fide in good faith made permanent improvements on said property to the amount and value of $479.97.</p> <p>On the 16th da3' of December, 1904, the court made and entered an order requiring Reid and Johnson to plead to the petition filed by The Southern Development Company in ten days.</p> <p>On the 21st day of December, 1904, Reid filed his answer to the said petition alleging that said Southern Development Company was not the owner of the lot in question, that the tax deed under which petitioner claims title was void for the reasons following, to-wit: The Assessor of Taxes for Duval County during the year 1897, did not comply in any particular with the provisions of Section 15 of Chapter 4322 of the Laws of Florida, then in force; that said Assessor did not, in person or by his assistants appointed ly the County Commissioners, ascertain by diligent inquiry the names of all taxable persons in said county; that neither the Assessor or his assistant made any visit to each precinct for the purpose of receiving tax returns, after having given ten days’ notice of such visit, between the first day of January and the first day of March, in said year, A. D. 1897, prior to the making up of said assessment roll; that the certificate on which the deed was issued by the Collector to the State in the name of the Treasurer was held by the State long after the time for redemption, and the title, if the sale was valid, had vested in the State, and the said petitioner could not acquire tlie title of the State by an assignmen of the tax sale certificate made by the Clerk; that at the time the said assessment was made and at the time of said sale J. M. DeWall and wife were openly and notoriously living on the said lot and claiming to own it. Replication was filed to this answer. Johnson also filed an answer to the petition. Reid also filed his petition for the surplus, and it was answered by The Southern Development Company, and replication was filed to its answer.</p> <p>On the 14th day of February, 1905, the court made an order that the' petition of said company be referred to Chas. S. Adams, Esq., as special master, “to ascertain and report to the court whether or not the tax deed, a copy of which is attached to said petition, is valid and passed to petitioner the title to said land therein mentioned and whether or not petitioner is entitled to- any of the said funds in the registry of the court,” the master to report his findings to the court and the evidence on which he acted. On August 2nd, 1905, he filed a report stating his “Findings of Fact,” and “Arguments and Findings of Law.” Such of the, matter as may be necessary will be stated in the opinion.</p> <p>On the 3rd day of August, 1905, George Eeid filed his exceptions to said report of the master. There are four exceptions. The first is to the finding that the assessment of taxes upon S% of lot one in block 13, Springfield, for 1897, was sufficient; that certificate 578 of the sale of July 4th, 1898, for the taxes of 1897 was valid; second, that the State of Florida transferred the title of said lot to the petitioner; third, that the tax deed in evidence is based upon said assessment and sale and was valid; fourth, that the petitioner is entitled to the entire proceeds in the registry of the court arising from the sale of the property.</p> <p>On the 20th of March, 1906, the court made an order overruling the said exceptions, and on the 28th day of March, 1906, the court rendered a decree confirming said report and directing the Clerk to pay over the funds in the registry of the court to the Southern Development Company.</p> <p>From this decree the appeal is taken.</p>

This case was decided by Division A. Appeal from the Circuit Court for Suwannee County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appeal from the Circuit Court for Volusia County. STATEMENT.

This case was decided by Division A. This is a case of original jurisdiction. The facts in the case are stated in the opinion of the court.

<p>REAL ESTATE — WRIT .OP RESTITUTION — SUMMARY GRANT OP, ONLY MADE AGAINST PARTIES TO THE RECORD OR THEIR PRIVIES. ’</p> <p>1. It is well settled that restitution of possession of real estate, on reversal of a judgment affecting it, • can he* compelled only from parties to the record, or from their beneficial assignees, or, in case of the death of the execution plaintiff, from his executor or administrator. Restitution cannot he compelled from third persons, strangers to the record, who were tona fide purchasers at a sale under process dependent upon a judgment subsequently reversed, or- who acquired tona fide collateral rights thereunder, and their rights are in no way affected by the subsequent reversal of the judgment.</p> <p>2. Particularly should restitution he denied as against a stranger to the record when sought in a summary manner by motion, rule or petition.</p>

The demurrer of Relator to the return of the Respondent sustained, and the peremptory writ awarded. This case was decided by the Court En Banc. This is a case of original jurisdiction. STATEMENT. An alternative writ of mandamus upon the relation of the Attorney General issued from this court against the Atlantic Coast Line Railroad Company to enforce an order of the Railroad Commissioners of the State under the provisions of Chapter 4700, Acts of 1899.

This case was decided by Division A. Appeal from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Dade County. The facts in the case are stated in the opinion of the Court.