A. V. Caro vs. The Pensacola City Company et. al., 19 Fla. 766

Mr.

Justice Westcott delivered the opinion of the court: The plaintiff, the Pensacola City Company and their co-plaintiffs to a large number, claiming title to and possession of a tract of land lying near Pensacola, through a common source, such title originating in the early part of this century, seek to enjoin the defendant from interference with their rights of ownership thereto, there having been a trial of the right at law, and judicial proceedings extending over a period of over six years, which resulted in the establishment of the title of the plaintiffs against the defendant, Caro, who is alleged to be insolvent.

Caro claims as one of the heirs of Rivas, and the title of Rivas is the common source of plaintiffs’ claim. This in this aspect, therefore, is a bill of peace to quiet the right of the plaintiffs which has been established at law after persistent and continued litigation instituted by Caro, who it is alleged is insolvent. Story’s Eq. Jur., §354; Trustees of Louisville vs. Gray, 1 Litt., 148 ; Trustees of Huntington vs. Nicoll, 1 John. Chy., 166; 3 John., 581, 592. Another object from which arises a distinct equity is to prevent a multiplicity of actions.

Caro claims a similar right as against the company and each one of its vendees. All claim through Rivas as the primary source of title, and it would take a large number of actions at law to determine the rights of the parties depending upon the same questions. In Alexander vs. Pendleton, 8 Cranch, 468, Judge Marshall, speaking of a somewhat similar case, says: The situation of the land adjoining a growing city, the number of persons who are consequently interested in the settlement of the question, and the numerous titles which depend on it, give it peculiar claims to the attention of the court.

The simple reading of the pleadings here discloses that this is a case surrounded by these “ peculiar claims ” to a great degree. The case before Judge Marshall was an application to restrain a person from the assertion of title in the ordinary course of judicial' proceedings. In the case of Nicoll vs. The Trustees, &c.,. of the Town of Huntington, 1 John. Chy., 166, Chancellor Kent holds “ that the peculiar state of property and the oppressive nature of the litigations at law as to the title' affords a proper ground for equitable jurisdiction.

And the party may either come into equity7 first to have his title tried at law under its superintendence, or he may7 have the title established at law before he comes to this court, and where the title is once established to the satisfaction of the court, either upon its own view of the testimony or by verdict on one or more issues awarded at its discretion, it will declare in whom the right exists by a decree, and protect that right by a perpetual injunction.

Now the bill here alleges that a suit was instituted by7 defendant against one of its tenants in 1872 when a link in its chain of title was missing ; that it was subsequently supplied ; that defendant avoided a trial, obtaining continuances from term to term upon various pretexts, and when no longer able to procure continuances, taking non-suits and instituting new actions, there having been no less than three actions brought for the same premises; that there have been two jury trials between the same parties for the same premises, the first in March Term, 1877, when after the close of the testimony a non-suit was taken by the plaintiff; the second at the March Term, 1879, at which the jury found for the defendant, and that in both of these trials the title of the heirs of Rivas was fully disclosed and ruled on.

Plaintiffs allege-also that notwithstanding the trial of the title and these proceedings the defendant continues to make leases and sales of portions of the Rivas tract which it and its vendees own, and that defendant and his tenants are cutting down shade trees and timber. Row these circumstances, coupled with the peculiar situation of the property as to ownership and locality, certainly should call into active exercise the protective and conservative powers of á court of equity. As to the matter of cloud upon title we perceive none to remove.

Caro is alleged to persistently deny it, but slander of title is not a cloud upon it, and cannot be enjoined as such. Davidson vs. Seegar, 15 Fla., 679. The next matter alleged as a ground fora reversal of the decree by the appellant which we examine is because the bill is not sustained by legal evidence. It is objected that the Chancellor did not endorse on certain papers the fact that they were read in evidence at the hearing of the case.

Rule 94 Chancery Rules in directing the clerk as to the manner of making up a record of a decree appealed from requires that he shall not copy into the record any paper as used in evidence upon the hearing unless the same shall have been noted by the Judge as read ,or rejected in evidence. In this case the Judge omitted to so note some of the papers used in evidence, and the clerk very properly for this reason omitted to insert them. At the instance of the respondent a certiorari was awarded and these papers were brought to this court.

Upon them now appears an endorsement of the Judge to the effect that they were read in evidence, but he neglected to note the fact at the time. The failure to make such note did not cause the papers to cease to be a part of the record. If they were used or rejected at the hearing they became ipso facto a part of the record.

It is the fact of use upon, the hearing, not noting, that makes them a part of the record, and while the clerk may very properly omit them • when not noted this court will, upon certiorari, bring them up for inspection, and if it is satisfied that they were read or rejected will decide the case in that view, and the subsequent eertificate or statement of the Judge that they were used will be accepted as sufficient evidence of that fact.

The rule itself prescribes no such penalty for the failure of the Judge to make such note, and when the truth can be ascertained such failure cannot be permitted to operate to the prejudice of either party, appellant or respondent, to such extent as to justify either an affirmance or reversal. Some penalty by the infliction of costs or other method may be visited, if deemed proper, upon the party neglecting to procure at the hands of the Judge the action required, but nothing more. It is further objected that plaintiff’s title is not sustained by the evidence.

We do not propose to go into a detailed statement of the many conveyances and their contents embraced in the evidence. The chain of title from the sale of 300 arpents of land by those representing the estate of Gabriel Rivas to Gregorio Caro, from him to Eitzsimmons Smyth and Chabeau, and from them through their vendees by sales under execution and direct conveyances, is com? píete. The title is traced to Gregory and Chase through these sales, and from them it is traced through the joint stock association to its vendees and to the Pensacola City Company and its vendees.

In reply to this evidence of title defendant introduces no proof. In his answer he affirms that under the Spanish law controlling the transfer of rights to land a minor could not acquire land, and that Gregorio Caro was a minor. Whatever effect such facts might have had upon the- title he has failed to prove anything in this connection.

The conveyance and proceedings under which the title passed not disclosing minority it devolved upon him to prove it as matter oí defence, besides the testimony here of a witness who knew Caro, is to the effect that he was about twenty-five years of age when he made the purchase, and while this may not be the highest evidence of a man’s age still it was not objected to, and in the absence of any exception and of better evidence it could have been properly acted upon if necessary.

The title of plaintiff, the Pensacola City Company, its vendee, and the vendees of the joint stock association, is established against Caro, so far as the paper title is concerned, by this testimony, and the suit at law established the title to the tract not to be in Caro, as it appears from the pleadings and proofs that this matter was involved in the issue. The defendant alleges that he has been in possession of some of this land for nine years. This is matter of defence.

He has offered not a particle of proof of it, and it devolved upon him to do so if his possession was of such character as to bar the action of plaintiff. Wade vs. Doyle, 17 Fla., 528. That he was an heir of Rivas even is not established by any proof, and if it was admitted the evidence here shows that the title had passed from the estate of Rivas, and defendant was required to show a title as against those deriving title from that source. The plaintiffs have placed in this record evidence of legal title, the defendant has shown none. On the contrary, the legal title he claims is shown' not to exist in him.

To the extent that there is an actual occupation there as a matter of course possession as a fact, whether rightful or wrongful, is fixed. Where, however, there is no actual occupancy or such possession as the law determines to be adverse the law casts the possession with the legal title, (Hogans vs. Carruth, 19 Fla.) and where there is actual possession, whether it is rightful or wrongful and of such character as bars the remedy of the party having the prior title, depends upon its duration and character.

In this case the legal title having been shown to be in the plaintiffs they have the possession as against all concerned in this suit except those who are in actual possession or occupancy, or whose possession has ripened into a legal title by virtue of the fact that its character and duration constitute it a bar to the plaintiffs’ right of action and those in adverse possession. The bill and evidence discloses here that there are persons other than Caro who claim interests in the property.

They are alleged to be vendees and lessees of the heirs of Rivas but they are not parties, are not named and may claim independent ownerships. They are not controlled by this decree except so far as they may be affected through its operation upon Caro by prohibiting him from collecting rents, &c. As to the rights and remedies, equitable or legal, of the plaintiffs against these persons we say nothing except that they are not directly bound by this decree.

Nor do we see how the rights of the heirs of Rivas other than the present defendant can be affected by this proceeding to which they are not parties, and in which not even their names appear. A suit cannot be instituted against the agent of a party, the service perfected upon the agent alone, and a decree made binding upon the principal. To this extent the final decree here should be modified. The appellant objects to the granting of the temporary injunction because no bond was given and because the particular title of plaintiffs was not set up in the bill or its exhibits.

It is too late now to raise these questions. Where the appeal is taken from the final decree awarding a perpetual injunction upon the merits and that decree is sustained, any error in granting the interlocutory injunction of the character named is not good ground for a reversal of the final decree. To the extent that it is sustained by what was before the Circuit Court at the hearing, it must be affirmed here. The rule is that although the writ may have been improperly granted in the first instance, yet if it is permitted to stand until the hearing it will then be continued to the extent equity appears.

The other grounds upon which a reversal of the decree is here sought, are that “ it is not proved that irreparable injury will result nor how a multiplicity of suits can arise.” This is not a bill to restrain a simple trespass or other act where threatened irreparable injury is necessary to equitable interference. As to the matter of the multiplicity of suits it sufficiently appears that there are a large number of persons having a common right against one claiming a like right against them and other circumstances which we need not again mention.

What we have-before said in this aspect of the case it is unnecessary to repeat here. To the extent that the final decree purports to affect the rights of the heirs of Rivas other than Caro, the defendant, it is reversed. It all other respects it is affirmed. The costs of the certiorari and the the copying of the papers attending it will be taxed against the respondents in this court, and all other costs will be equally divided between the parties.