Thomas Shalley, Sheriff, George R. Fairbanks et al., Appellants, vs. Mary E. Spillman et als., Appellees, 19 Fla. 500

The Chief-Justice delivered the opinion of the court: There is no question between counsel that the complainants must, to maintain this suit, have at least a legal title to the property in question. The complainants assert such title and the defendants deny it. Complainants allege that their title is derived from the “ Trustees of the St. Johns Colony ” by agreement dated May 3, 1881, and a deed by the trustees dated May 18, 1881, conveying the lands to Robert C. Alsop, Charles E. Griffith, George Watt, William H. Alvord and John G.

Fleischman, a conveyance by said Alsop and others to “ The Florida Colonization Company,” a New York Corporation, and by a conveyance from this corporation to complainants. Defendants show by their answer and exhibits that James M. Baker, trustee, conveyed the property by deed November 20, 1877, to “ George A. Sofield, Chaides St. Charles and Thomas Hind, Trustees of the St Johns Co-operative Colony of the county of Putnam and State of Florida,” and their heirs, successors and assigns forever. It does not appear that Sofield, St. Charles and Hind, either in their own right or as Trustees of the St.

Johns Co-operative Colony, have parted with their title by any conveyance made by them. It appears by an exhibit annexed to the answer that on the 18th February, 1881, a proceeding was had before the Judge of the Fifth Circuit “ in the matter of the petition of stockholders and owners of the St. Johns Colony for the removal of trustees and the appointment of new trustees to act in their stead and place.” The petition alleges that they purchased a large tract of land in Putnam county known as the Hernandez Grant, and another tract from George Fairbanks, and selected George Sofield, Charles St.

Charles and Thomas Hind trustees for the said St. Johns Colony, and had the said lands conveyed to them for the use of the St. Johns Colony, petitioners being the said St. Johns Colony; that the trustees had utterly neglected to act as such trustees for the interests of the owners, to their great detriment. One of these trustees resides in Brazil, one in New Jersey and one in Florida. They prayed that the deed making them such trustees be vacated and new trustees be appointed in their stead. The Judge on the same day made an order that Sofield, St.

Charles and Hind be removed from their position as trustees of the “ St. Johns Colony,” and that their power as trustees be vacated. It was further ordered that Washington Pullis, James MeConkey and Thomas Kelly be appointed trustees in the place of those removed. This order was filed in the clerk’s office in Putnam county, February 28,1881. Whether the St Johns Colony was a corporation, or a joint stock association unincorporated, does not appear by any allegation in the pleadings.

In one of the exhibits annexed to the answer, to-wit: a deed “between Washington Pullis, James McConkey and Thomas Kelly as Trustees of the said The St. Johns Colony of the first part and Robert G. Alsop ” and others named, conveying the lands mentioned, the St. Johns Colony is described as “a corporation duly created by and under the laws of the State of Florida.” Nowhere in the bill or answer does it appear that “ The St. Johns Co-operative Colony ” and the “ St. Johns Colony ” are identical, or whether either of them is a corporation.

They appear, so far as the pleadings show, to be two associations existing under different names. We do not think it necessary to decide whether the proceedings for the removal of the “ Trustees of the St. Johns Colony ” and the appointment of the new Trustees were effective in respect to the question of the method of proceeding or the jurisdiction of the court over the persons of the Trustees sought to be removed. If they were legally removed as Trustees of the “ St. Johns Colony ,” it does not necessarily follow that the “ Trustees of the St. Johns Cooperative Colony ” were displaced.

There is no dispute that the title was formerly vested in James M. Baker, trustee, and that he conveyed to Sofield, St. Charles and Hind, trustees of the St. Johns Co-operative Colony. Ho conveyance by them appears here. The sheriff’, \Shalley, by virtue of executions issued upon decrees for a balance due after foreclosure of mortgages and sale of mortgaged property, in suits wherein Baker, trustee, and Fairbanks, were severally complainants, and Sofield, St. Charles and Hind as “ trustees of the St.

Johns Co-operative Colony,” were defendants, and by direction of the court by its decree, levied upon these lands as trust property held by Sofield, St. Charles and Hind, for the St. Johns Co-operative Colony, and so far as we can ascertain by the record here the lands are still held by them in trust for the latter, and liable to levy and sale for any of its debts duly established by judgment or decree.

The defendants insist that the matters alleged in the bill of complaint do not show that complainants are entitled to invoke the aid of a court of equity to remove or .prevent a cloud upon their title, because they have ample remedy in a court of law, and defendants “ claim the same benefit as though they had demurred to the bill.” The question as to the jurisdiction of a court of equity to prevent or remove a cloud upon the title of complainants depends upon whether, on a sale made by virtue of an execution against a third person, such sale would give the purchaser an apparent title as against the complainants, which they would have to defeat by evidence in defence in an action against them.

The rule on this subject is stated in Davidson vs. Seegar, 15 Fla., 671, 679 ; Barnes and Wife vs. Mayo, Admr., decided by this court at this term ; Pixley vs. Huggins, 15 Cal., 127; Rea vs. Longstreet, 54 Ala., 291; Robinson vs. Joplin, Ib., 70; 1 Story’s Eq. Jur., §700, 11th Ed., Note A. The bill in this case fails to show that the St. Johns Cooperative Colony, or the Trustees thereof, ever had any title or interest in the lands levied on by the sheriff under the execution against such Trustees; and if the St.

Johns Cooperative Colony, or its Trustees, never had any interest, such levy and sale would not carry an apparent title to a purchaser. Such purchaser, therefore, could not recover in an action of ejectment upon his own showing, and the defendant would not be put to proof to defeat it. In other words, a sale under an execution against A would not create a' cloud upon the title of land belonging to B, unless B at some time had a title. The bill failing to show that the St.

Johns Co-operative Colony, or its Trustees, ever had any interest in the land, a sale under the executions in favor of Baker and Fairbanks would not create such a cloud upon the title of the complainants as to warrant the interference of a court of equity. The demurrer of the defendants must be sustained. The decree of the Circuit Court allowing an injunction is reversed and set aside, and the bill will be dismissed by the court below unless the complainants amend as they may be advised within such time as may be fixed by that court.