Byrne Realty Co. v. South Florida Farms Co.

Love, Circuit Judge,

dissenting:

After a most careful consideration and study of the questions arising in. this case, and with the greatest deference to the views of the majority of my learned associates, I find, most reluctantly, that I am compelled to dissent from some of the views expressed in the prevailing opinion.

This case is brought to this court by an appeal from the judgment of the lower court sustaining demurrers to the cross-bill, two of the grounds .of both demurrers raising the question of want of equity in the bill and laches.

The effect of the demurrers is to admit the truth of all the facts that are sufficiently alleged by the cross-bill as well as the conclusion necessarily resulting from the facts, stated and to assert that in the particulars stated in the demurrers, the cross-bill is insufficient to show a cause of action. While all facts necessary to be proven should be alleged, it is sufficient if the ultimate facts are stated without' detail. H. W. Metcalf Co. v. Orange County, 56 Fla. 829, 47 South. Rep. 363.

A general demurrer for want of equity should be over*853ruled if there is any ground for equitable relief stated in the bill. Thompson v. Maxwell, 16 Fla. 773; Louisville & N. R. Co. v. Gibson, 43 Fla. 315, 31 South. Rep. 230.

From the statement of this case, it' appears that the allegations of the cross-bill show that, by contract entered into between John A. Henderson and the Trustees of the Internal Improvement Fund, in 1884, the said Henderson was employed to obtain selections and patents from the United States Government for certain swamp and overflowed lands to which the State was then entitled, but which it had failed, up to that time, to receive; and for his services under the terms of said contract, the said Henderson was to receive as his compensation at the rate of two cents for every acre of swamp and overflowed lands so selected, as a result of his labors and to be patented to the State, “payable out of such lands as might be thereafter selected and specified by him, at the sale price fixed from time to time by said Trustees.” That on June the 13th, 1892, during the term of the said Henderson’s employment under the contract mentioned, he was entitled as compensation already earned by him under said contract to have deeds or certificates (according as the lands selected by him had or had not been patented to the State) to many thousands of acres more than the total of all lands theretofore deeded or certified to him, together with the number of acres included in the certificate referred to as “Exhibit A”; that the said Henderson, being so entitled, requested the Commissioner of Agriculture to issue to him such certificate, and in accordance with the custom of said Commissioner under such circumstances and, as it is expressly alleged, pursuant to the authority delegated to him by the said Trustees, and in compliance with such request, such certificate was duly issued.

*854That on July the 15th, 1890, the said John A. Henderson entered into a contract with J. M. Kreamer and J. J. Dunne whereby, after reciting the substance of said contract between the said Henderson and the said Trustees and the right of the former to a conveyance thereunder of some fifty to seventy-five thousand acres of land, it was agreed that the said Henderson should sell to the said Kreamer and Dunne all the land to be received by him under said contract (after providing, for certain contingencies specified) at a certain price per acre in said contract stated; and the final paragraph of said contract being as follows: “Fifth, the said Henderson agrees that for all the lands the said Kreamer and Dunne may designate, he will have the State of Florida issue certificates whenever they shall desire, and the same shall be delivered to the said Kreamer and Dunne in proportion as they may make payments on this contract, or the whole may be deposited in escrow subject to the payment of the balance of the purchase money.”

That thereafter Kreamer and Dunne paid to the said Henderson the initial payment of Six Thousand Dollars as provided in said contract and under the option given in the quoted paragraph, elected that the land certificates should be obtained by the said Henderson and delivered to the said Kreamer and Dunne in proportion as they might make payments thereon. That subsequently, about August 11, 1892, Kreamer and Dunne paid to the said Henderson on the said contract the additional sum of Five Thousand Dollars and that said land certificates designated as “Exhibit A,” with another for Nine Thousand Eight Hundred and Forty acres were delivered to the said Kreamer and Dunne by the said Henderson in consideration of said two payments, amounting to the sum of Eleven Thousand Dollars, under and in pursuance *855of the provisions of said contract above quoted, providing that such certificates should be delivered to them in proportion as they might make payments thereon.

These allegations set out a valid agreement, by which the said Henderson agreed to sell to Kreamer and Dunne “all the land to be received by him” under the contract between him and the said Trustees at a certain price per acre alleged to be stated in the contract, but which is not specifically set out in the cross-bill. In said contract, the said Henderson agreed that for all the lands the said Kreamer and Dunne might designate he would have the State of Florida issue certificates, “whenever they shall desire and the same shall be delivered to the said Kreamer and Dunne in proportion as they may make payments on this contract, or the whole may be deposited in escrow subject to the payment of the balance of the purchase money.” Under the alleged contract between Henderson and the said Trustees, the former would be paid out of the lands selected as the result of his labors and patented to the State, such part as “might be thereafter selected and specified by him at the sale price fixed from time to time by the said Trustees.” Such allegations sufficiently stated the effect of the alleged contract with respect to the privilege conferred thereby on the said Henderson of choosing and designating certain parts of the selected lands for his compensation.

Whether or not the creation of such special privilege on the part of said Henderson by the then Trustees,, by means of a contract providing for his compensation for the services to be rendered by him as aforesaid thereunder, before the lands were actually patented to the State, would bind the State or future trustees in the event of an attempt to deny such right; or whether, as is contended in the prevailing opinion in this case, the resolu*856tion of the trustees in employing Col. Henderson, as set forth in the Minutes, is so at variance with the alleged provisions of the said contract as to prevent such allegations from being admitted by the demurrer, does not, in my opinion, materially affect the right of the parties under the allegations of the cross-bill, as it appears that such right was subsequently recognized by the then trustees when they conveyed such selected and designated lands to the heirs of the said John A. Henderson pursuant to such contract. See, however, Emmet County v. Allen, 76 Iowa 499, 41 N. W. Rep. 201, as upholding the validity of such a contract.

Even if it be admitted that, as between the said Henderson or his assigns on the one side and the State or the Trustees on the other, the Certificate alleged, was without binding effect, had it been questioned, yet it plainly appears from the allegations of the cross-bill that the selections of such lands as are described in' the said certificate were recognized and ratified by the Trustees after said lands had been patented to the State in 1903, when, as it is alleged, “soon after the death of the said Henderson,” his heirs, above named, applied for and obtained from the said Trustees a deed which covered a large area of land and included the same fifteen thousand nine hundred and sixty-one acres described in “Exhibit A” and involved in this cross-bill.

If the said Henderson had the right under his contract with the said Trustees to select lands that were to be conveyed to him by such Trustees and did select the lands described in said Certificate, as it is alleged he did, then such Trustees, or the Commissioner of Agriculture, who himself was one of such Trustees, and, as it is alleged, had the authority delegated to him by such Trustees so to do, would not be acting beyond the scope of their re*857spective authorities or powers in certifying that such a selection had been made, as this would be only certifying to a fact known to the Trustees in their official capacity.

Taking into consideration the recitals of the contract between Henderson of the one part and Kreamer and Dunne of the other part, the situation of the parties and their alleged action with reference to such contract, it is apparent that the so-called land certificate issued to Henderson by the Commissioner of Agriculture was such certificate as was referred to in the quoted clause of the said contract and as was in the contemplation of the parties thereto, and was obtained from the Commissioner of Agriculture by the said Henderson and delivered by him to the said Kreamer and Dunne pursuant to the provisions of said contract in order to carry out in good faith his obligations thereunder, consequent upon the payment lo him by the said Kreamer and Dunne of the said sum of Eleven Thousand Dollars and their election to exercise their option under the said contract as aforesaid. It is alleged in the said cross-bill, and therefore admitted by the demurrers, that the said Henderson received from Kreamer and Dunne the sum, of Eleven Thousand Dollars; that in consideration thereof and in pursuance of the quoted provisions of said contract, he delivered to Kreamer and Dunne two certificates, which certificates, under the terms of said contract, he was to deliver to the said Kreamer and Dunne “in proportion as they may make payments on this contract;” that is, such certificates should be delivered to the said Kreamer and Dunne in the degree or measure as they made payments on the contract. Such allegations plainly import that as Kreamer and Dunne designated certain lands and paid over to the said Henderson the purchase price, he would *858obtained the mentioned certificates and deliver the same to Kreamer and Dunne, the number of acres included therein being in proportion or in the degree or measure as the amount paid therefor bore to the stipulated pxfi.ce for the lands agreed to be sold. It would follow, therefore, that before Henderson could be called upon to deliver such certificates, he should first receive the full purchase price at the agreed rate for the number of acres included in such certificates. Further, it is alleged in the cross-bill that the said land certificate, designated as “Exhibit A,” with another for nine thousand eight hundred and forty acres, were .delivered to the said Kreamer & Dunne by the said Hendei'son in consideration of the two payments amounting to the sum of eleven thousand dollars, under and in pursuance of the said contract above quoted. The majority of this court hold that the allegations of the payment of such consideration are too unceifiain and indefinite to clearly show full payment for the particular land described in the said certificates, contending, that to show an executed consideration for such land, the cross-bill should have eleaifiy alleged that such payments were in full for the particular lands and not partial payments and that full disclosure should have been made by the pleader of the alleged price per acre, etc. In this I am unable to concur. The meaning of the words “in consideration of” as ordinarily and commonly attributed to them, when appearing in deeds, agreements for the sale of property and other like instruments is, prvma facie, the full consideration, the entire purchase price, and the burden of proof, when the recited consideration in such instruments is attacked is upon the person attacking it.' Therefore, in the abseixce of anything to the contrary appearing, it is only a fair and reasonable inference to draw from such allegation that the payment of the said sum of *859$11,'000.00 was the full and entire consideration for the particular lands alleged, and that the details as to price per acre, etc., are evidentiary matters only.

Construing the action of Col. Henderson in delivering to Kreamer & Dunne such certificates, as it is-alleged he did, pursuant to the provisions of said contract and “in consideration of” the payment to him of the said sum of elevent thousand dollars, I submit, the fair and reasonable deduction to be drawn from all of the allegations of the cross-bill, relative to the alleged transaction, is that the particular lands described in the said certificates were paid for in full at the agreed purchase price before the alleged delivery of said certificates.

As between Henderson of the one part and Kreamer and Dunne of the other, what was the effect of such certificate, if it was not" binding upon the Trustees to the extent of creating an express trust in such lands for the benefit of the said Henderson? Was it a mere scrap of paper? The certificate in question, signed by the Commissioner of Agriculture, ex officio a member of the Board of Trustees of the Internal Improvement Fund, and in whose custody were all of the maps, plats and records of the public lands of the State of Florida, declares that “John A. Henderson has applied to enter on his account as State Selecting Agent all the following described lands,” a particular description being set out therein, and “I further certify that the said land will be conveyed to the said John A. Henderson or his order as soon as the same has been patented to the State of Florida.” This certificate, as it is alleged, was then endorsed and delivered to Kreamer and Dunne by the said Henderson, and thus, he thereby affirmed and ratified the recitals therein contained. If such certificate was of no binding *860force and effect upon the said Trustees, at least it is referable to the contract for the sale of such lands by Henderson to the said Kreamer and Dunne, and identifies with certainty the lands for which payment was made by Kreamer and Dunne under and in pursuance of such-contract. These particular lands being paid for in full, as hereinbefore pointed out, then, as soon as the legal title became vested in the heirs of the said Henderson, they are regarded in equity as being seized thereof as naked trustees, having no interest therein, but charged with the simple duty to convey the same to the said Kreamer and Dunne or their assigns upon demand. 27 R. C. L. 467; Aycock Bros. Lumber Co. v. First National Bank of Dothan, 54 Fla. 604, 45 South. Rep. 501. This view is strengthened by the authoritative case of Rose v. Watson, 10 H. L. Cases, *672, 33 L. J. Ch. 385, 10 L. T. 106, wherein it was said by Lord Cranworth: “There can be no doubt, I apprehend, that when a purchaser has paid his purchase money, though he has got no conveyance, the vendor becomes a trustee for him of the legal estate, and he is, in equity, considered as the owner of the estate.. When, instead of paying the whole of the purchase money he pays part of it, it would seem to follow as a necessary corollary that to the extent to which he has paid his purchase money, to that extent the vendor is trustee for him; in other words, that he acquires a lien exactly in the same way as if upon payment of part of the purchase money, the vendor had executed a mortgage to him of the estate to that extent.” This same principle is also recognized and stated in Jennisons v. Leonard, 21 Wall. (U. S.) 302, 22 L. Ed. 539.

It is contended that if Kreamer and Dunne ever acquired any equitable rights in the premises the allegations of the cross-bill show that they lost the same by *861abandonment. If there is no evidence of abandonment of the vendees’ claim, no mere lapse of time will bar their remedy, when the consideration has been fully performed, as the vendor then becomes a trustee and can gain no adverse rights without an open disavowal. 36 Cyc. 732.

Acts constituting abandonment must be positive, unequivocal and inconsistent with the continuance of the contract. 39 Cyc. 1353. Aside from mere inaction of the vendees of Henderson in failing to apply for their deed, for the time stated, no evidence of abandonment of their accrued rights is made to appear.

But it is urged that the cross-bill shows that the vendees of Henderson and their assigns have been guilty of such gross laches in asserting their rights as to deprive ■them of any remedy at this late day. The facts and circumstances relied upon to establish such alleged laches are, briefly stated, the delay of the cross-complainant and those under whom he claims in failing to take any action towards enforcing their claims from their accrual in 1904, when the legal title to the lands in question was conveyed to the heirs of the said Henderson (for it must be borne in mind that the prevailing opinion in this case holds that no right's could accrue to the purchasers until the trustees had conveyed to Henderson or his heirs) up to the filing of the cross-bill; the conveyance by such heirs in 1915 to the South Florida Farms Company; though, it is alleged, with notice to the latter of the rights of those under whom complainant in the cross-bill claims; the great increase in the value of such lands during such interval; the death of the said Jno. A. Henderson, who was cognizant of the circumstances of the transaction and the consequent loss of his evidence and the presumed payment of the taxes on such lands by the holders of the *862legal title. Do these facts and circumstances constitute such laches as deprive the vendees of the said Henderson and those claiming under them of all rights once vested in them?

Laches is a neglect to do something that by law a man is obliged or in duty bound to do. Anderson v. Northrop, 30 Fla. 612, 12 South. Rep. 318, 324.

According to Mr. Pomeroy, the doctrine of laches cannot be more concisely or accurately stated than in the language of Stinness, J., in Chase v. Chase, 20 R. I. 202, 37 Atl. Rep. 804: “Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as the parties are in the same condition, it matters little whether one jiresses a right promptly or slowly, Avithin limits allowed bjr law; but when, knoAving his rights, he takes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored t'o his former state, if the right be then enforced, delay becomes inequitable and operates as estoppel against the assertion of the right. The disadvantage may come from loss of evidence, change of title, intervention of equities and other causes; but when a court sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief.” 1 Pomeroy’s Equitable Remedies, Section 21.

What disadvantage has the alleged delay in asserting the claims set up by cross-complainant worked to the heirs of Col. Henderson, Avho are made defendants in the cross-bill? The State obtained a patent to the land in question in 1903. From the allegations of the cross-bill no application is shown to have been made by Jno. A. Henderson up to the time of his death in 1904 for the conveyance to him of the lands to which he was entitled in *863compensation for the services rendered by him in selecting and obtaining patents to the State for such lands. It was not until after his death that any application for such conveyance was made, and upon that application a deed for the land in question, with other lands, was made by the trustees to the heirs of the said Henderson. Under the view that the “certificate” conferred no right as against the said trustees, then Kreamer and Dunne could take no step towards acquiring a legal title to the land in question until such title had been acquired by the said Henderson or his heirs. There was, therefore, no loss of evidence as to the circumstances of the transaction, resulting from the death of Col. Henderson, and caused by the failure of his vendees to promptly assert their rights in the premises, as is contended for in the controlling 'opinion, as it clearly appears that he died prior to the acquisition of the legal title to the lands by his heirs.

If the land has greatly enhanced in value, the purchase price was paid before such increase, and the benefit thereof should inure to the vendees of the said Henderson. If the South Florida Farms Company purchased such lands with notice of the rights of the Henderson vendees, then it took the same charged Avith the trust in connection theravith; if it took such lands without such notice, then the relief prayed for, as against the Henderson heirs, if the allegations of the cross-bill can be sustained, can be afforded, with due provision for their reimbursement for such expenses as they have incurred, if any, because of the delay in the enforcement of the trust.

The relation between the said John A. Henderson on the one side, and Kreamer and Dunne on the other, was, at the inception of the contract, apparently and presum*864ably a friendly one, a real confidence being reposed in tbe vendor by the purchasers when the purchase price of the land was paid, and in the absence of any showing to the contrary, may be regarded as unbroken and continuing after his heirs obtained the legal title up to the time of the conveyance by them of the land to the South Florida Farms Company. Up to that time, Col. Henderson and his heirs on the one side and the vendees of Col. Henderson and their assigns on the other, were in the same position with reference to each other as they were when such heirs acquired the legal title to the said land, and no injury or disadvantage to such heirs is shown to have resulted from the failure of the vendees of Col. Henderson and their assigns to attempt to enforce their equitable rights at an earlier day than it is shown by the cross-bill they did.

I am forced to the conclusion, therefore, that the judgment on the demurrer should be reversed and the cause remanded.

Browne, C. J., concurs in the dissenting opinion.