Jane Keil, Appellant, vs. Mary L. West et al., Appellees, 21 Fla. 508

Mr. Justice Raney delivered the opinion of the court: I. The bill asserts that Mrs. West, who is, with her husband, the complainant, and her two sisters are seised in tee-each of one-third undivided interest in the land, by deed from the executors of I. D. Hart, and that no one else is in fact interested in the property, yet that Mrs. Keil, a defendant, “claims to have some interest therein and to be in possession of said premises,” yet she “ refuses to set forth her interest or to join in partition.” Profert of the deed is offered. The bill prays that Mrs.

Kiel and the other defendants maybe required to answer,and that the shares belonging to any of the parties maybe ascertained and settled and a partition made and for general relief. Under our statute the bill may be filed by “ tenants in common, joint tenants or coparceners, against their co-tenants, coparceners- or others interested in any lands to he divided.” Mrs. Keil. was made a party, evidently to give her an opportunity to-disclose her interest and have it allotted to her or protected.. íf she had no interest- her presence could harm no one.

If she had an interest unknown to the complainants she had an opportunity to make it known; and upon its being set up the court could have adjudicated it, or sent the-question to a court of law, if it had been such as a court of equity cannot dispose of under our statute. It might have been that she had even an undivided interest by conveyance from one of the sisters, and that it was unknown to-complainants. The bill does not allege that Mrs. Keil is in possession. Its statements given above are sufficient as to the possession of Mrs. West, and her sisters, to give the court jurisdiction.

Freeman on Cotenancy, §485. In Jenkins vs. Van-Schaack, 3 Paige, 242, cited for apppellant, it is held that it is not necessary to allege in the bill that complainant is in possession of the premises, as that fact is presumed from the allegation, that the parties are seised in common. Hitchcock vs. Skinner, 1 Hoffman, C. R.; Godfrey vs. Godfrey, 17 Ind., 6 ; 8 Pick., 375. In Miller vs. Dennett, 6 N. H., 109, the petition tor partition alleged that Miller was seised in fee of an undivided fourth part, and Mrs. Pickering of another fourth part undivided, of the land.

It was proved that the land had, in 1795, been conveyed in fee to John and William Miller, who went into possession. In 1813 John died leaving J. H. Miller and Mrs. Pickering as his heirs, but such heirs had never been in possession, and it was contended by respondents that they must resort to a writ of entry. Survivorship among joint tenants had been destroyed by statute, as in Florida.

It was held that in order to sustain a petition for partition it is not necessary that the petitioner should be in actual possession. “ In this case ” says the opinion, “ it does not appear that the petitioner had ever been actually ousted, and among cotenants the possession of oue is the possession of all until an actual ouster is shown. There is no foundation for this objection to the petitionIn the case at bar there is proof that Mrs. West is actually occupying part of the premises. The contention that the bill alleges that Mrs.

Keil is in possession under a claim of title adversely to complainant and her sisters is not supported by reading the bill. All it admits is that she claims to be in possession, but not such a possession as amounts to an ouster of Mrs. West or her sisters.' It does not admit that she claims any interest adverse to their right of partition.

We do not say that a bill which shows, in compliance with the rule in such cases, that a defendant is in posssssion of the premises claiming them adversely to complainants would not oust the. equitable jurisdiction no; such case is before us, and in its absence we say nothing. 34 Mo., 522 ; 2 Stockton, 277. When one in possession under a tenant in dower held over after death and purchased the shares of some of the reversioners, and continued in the exclusive possession, but without manifesting an intention to oust the other reversioners, it was held, in Lipscomb vs.

Root, 8 Pick., 375, that his possession was according to the title, and that the latter reversioners might maintain partition. “ It' is only when actually ousted,” says Parsons, 0. J., “ or when there is an avowed adverse possession that one claiming to be a tenant in common is driven to an entry or an action for possession before he can have partition.” In Barnard vs.

Pope, 14 Mass, 437, an actual corporal seisin is held not to be necessary to maintain partition, and it is said “it is true that by the common law and English statutes the writ of partition cannot be maintained by one tenant in common who is disseised, not even if the disseisin be by a cotenant. But every dispossession does not amount to a disseisin, especially by tenants in common.

Eor the possession of one is the possession of all, unless by an actual ouster or an exclusive pernancy of the profits against the will of the others one shall manifest an intention to hold the land by wrong, rather than by the common title.

But without such overt acts or a sale and exclusive possession for over twenty years, so that the right of entry shall be gone, disseisin is not to be presumed.” There is certainly nothing in this bill or in the record which shows any such exclusive pernancy of profits, or overt acts or actual ouster, or adverse holding for seven years, or other particular period, nor does the bill show anything inconsistent with complainant’s actual seisin, but on the other hand it alleges everthing necessary as to seisin. 6 N. H., 109; 3 A. E Marshall, 280. The case of Gravier vs.

Ivory, 34 Mo., 522, illustrates how far a bill must go to show adverse possession. It is objected that the bill does not set out sufficiently the respective titles and shares or portions of the parties, and how they hold the same.

It does seem to us that upon any fair construction of the bill, the complainants have set forth, as shown by the statements given, to the best of their knowledge and belief the names of all the owners, and others interested, the quantity and proportionate share claimed by each and all other matters necessary to enable the court to adjudicate fully upon the rights and interests of the parties, and also how their title was acquired.

When complainants state positively who are the owners, and set out their interests and title, and that no one else has any interest, yet that one. person claims an interest, but she refuses to disclose it, and swear “they have read the foregoing bill, and know the contents thereof and know the same to be true,” we think it is going very far to assume that something within their knowledge and belief is withheld. II. It is claimed that the subpoena is defective in not containing “ a description of the premises,” and not stating that the suit was for partition.

The statute does not require that the subpoena shall contain a description of the premises. When the defendant is not a resident of the circuit in which the suit is instituted, or is unknown, or his place of residence is unknown, it requires that an order to appear and answer shall be made and that “ such order or notice of the same ” shall be published and contain a description of the premises. It is, however, true, the statute provides that the subpoena shall “ state that the bill is filed for partition.” This subpoena is defective in not so stating.

This defect, like the omission of the officer, to show the original at the time of delivering a copy to Mrs. Keil, has been made immaterial by her voluntary appearance in the cause and the entry of such appearance by the clerk. There is nothing in the record to suggest that her appearance was other than purely voluntary, or that any attempt was made to mislead her. It is too late to discuss defects in such process or in the service or return thereof after its commands have been voluntarily complied with. 18 Fla., 861* 574. III.

"We do not gainsay the doctrine that a complainant can take no decree against a defaulting defendant except such as his bill will sustain. If it states no case he is entitled to no decree. Suffering a decree fro confesso is an admission of the facts which are well pleaded, but the decree does not aid or supplement a bill which does not state a good cause of action. Baldwin vs. Stribling, 21 Fla; 25 Ills., 266; 40 Ala., 446 ; 2 A. K Marshall, 123., In Lease vs. Carr, 5 Blackford, 353, (referred to in Shaw vs.

Parker, 6 Blackford, 345, cited by appellant’s counsel,) under a statute so general in its provisions as to be regarded by the court as continuing the usual rules of equity as to the case to be stated by a bill of partition, it was held that the petition should have shown the nature and extent of the interest of the petitioner in the land, and that he held in common with the defendants; that it should have stated their interest in the premises so far as it was known to the petitioner. . “On these points,” say the coui’t, “ the petition is silent.

It merely requests the appointment of commissioners to decide the land designated in the notice, between the petitioner and George Lease and the unknown heirs of William Lease, deceased.” It cannot be claimed that the bill in question has any such aggravated imperfections. In Godfrey vs.

Godfrey, 17 Ind., 6, there were several defendants, and it was alleged in the petition that the ancestor left children and grand children to whom the land descended one of them being the petitioner, and the other being among the defendants, and that two other defendants each claim to have title to the land or some part thereof, but that the nature of their claim and title and the amount of their respective interests the petitioner did not know, nor did he know whether they had an interest or not, but they, as petitioner was informed, pretend to have an interest, and are hence made defendants.

As to one of them, who filed a demurrer, the court say: “ It is alleged that he claimed title, and the proceedings would bar him unless he came in and set up his claim if he had any. Instead of demurring we think he should have set up his claim to the land if he had any.” Without saying that our statute is as broad as that of Indiana, we however think the statement of the bill, as given heretofore, sufficient to support a decree pro confesso, and a final decree consequent thereupon adjudicating that the daughters were seised in fee each of one-third of the premises. IV.

It is contended that there was no proof of title before the master. Assuming that Mrs. Keil had the right to appear before the master and require final proof of the deed, it is a fact that though she produced it, in compliance with a subpoena duces tecum, and it was read in evidence, she made no objection either as to the proof of its execution or as to the non-production of the last will and testament of Hart. It is too late to except for the first time after the case reaches this court. Simmons vs. Spratt, 20 Fla., 496; Emerson vs. Ross, 17 Fla., 125.

The production of deeds in cases of partition is not unusual. 2 Daniel Chy. Pl. & Pr., 1154. In Hamilton vs.

Morris, 7 Paige, 39, a partition suit where a decree pro confesso was taken against unknown owners of certain undivided shares of the premises, it was held that the master should require the complainant to produce abstracts of his title as a tenant in common in the premises, and to trace it back to the common source of title of the several tenants in common, and that the master should, as far as practicable, give an abstract of the conveyance of the several univided shares or interests of the parties from the time the several shares were united in one common source.

Assuming that Mrs Keil can require it, we see that the master had proved the title from the common source, by evidence found in her possession, and as to the introduction of which she made no objection. It is the very title for which she claimed to have paid part of the purchase money and admits having received the deed of conveyance. She says, in a petition in the record, that if the title is not in her it is in Hart. The testimony taken by the master shows that Mrs. West occupies part of the premises, and nothing as to any adverse holding. V.

The decree of partition sufficiently passes upon the rights of all the parties, and decrees to those entitled a separate share, as warranted by the bill and proofs, and does not leave this to the judgment or discretion of the commissioners. It decrees that appellant failed to appear and set forth her interest and that the evidence shows she had none, and that each of the three sisters is entitled to a third

part in fee simple, that partition be made, and appoints commissioners to make it and to assign to each her share. Ho more is essential. VI. The commissioners’ report under the decree of partition bears date July 9th, 1884, and the affidavit required to be made by them before acting is dated the next day.

The report states that they took the oath before going on the premises, and examining the same, and there is an affidavit of one of the commissioners, which was used on the motion to open the decree, stating that the report was drawn by him, and that it is erroneously dated the 9th instead of the 10th, and that their duties were performed after they qualified. We conclude that the oath was taken before they acted. VII. We see nothing in the record to relieve the appellant from the imputation of laches in the matter of answering the bill.

She says she received the subpoena to appear* and that, “through ignorance of her rights in the premises* and without the advice of counsel, she being too poor to employ the same, and having tried to do so,” she appeared * that she hath lately learned, since the making of the final decree, that she was not compelled to appear as the summons was defective as previously indicated ; upon which account she says her appearance made through ignorance and mistake was void.

That she again tried to employ counsel to represent her, and believed and thought she had succeeded, and she gave herself no further concern until she received another summons, which she is now informed was to appear and testify on complainant’s behalf; that at this she was greatlv surprised, but she obeyed the same and surrendered the deed ; all of which she says was done through surprise, mistake and ignorance and without the consent of her “ said attorney.” After this she says she saw a notice of sale posted on the premises, when she found upon examination that a decree pro confesso and of sale had been rendered, and “ that the attorney employed, as she supposed and believed, had without any direct fault on his part failed to attend to the same and represent her therein on account of a misunderstanding of the arrangements with her as to. his services ; neither to which as the wilful neglect of petitioner can the same be laid.” She then alleges that she has within the last few days succeeded in employing counsel.

The fact that she did not understand the summons to be defective is no reason for avoiding her appearance, nor does it excuse her for not answering. By appearing she seems, to have understood what the summons required. There is nothing to show that she learned its requirements otherwise than from the paper itself. To have so learned then she must have read it, which shows some intelligence. Her general assertion of want of intelligence is not corroborated by anything in the record.

Mere poverty is not ground for opening a default, and her poverty is, to say the least, •questioned, and is not alleged to be a source of any trouble, when, after appearing, she again tried to employ counsel, ■and believed she had succeeded in doing so. It is evident that she relieves the attorney she may have tried to employ from any charge of direct fault (but herself oiily of wilful neglect) so far as his not acting is concerned.

It 'would be a fruitless effort to attempt to show by anything in this record who the attorney is, what her efforts to employ him really were, why she “supposed and believed” he had been employed, what her arrangements with him really were, and what or wherein the misunderstanding was. Her action in obeying the summons to testify, and surrendering the deed, does not indicate that she was ignorant or mistaken as to its requirements, even if she was surprised at it.

We see nothing of which the appellant can complain to be ■“ laid at complainants’ door.” They have done nothing savoring of sharp practice or wrong upon her. There is no sufficient excuse for her neglect of her rights, if she had any, and her failure to answer the bill. 20 Fla., 235. Moreover, we do not think she has exhibited in her petition such a meritorious defence as would justify opening the •decree had she shown due diligence. It was never sufficient in a case of this kind for the defendant to merely deny the complainant’s title.

He had to answer the bill, and if he proposed to set up a title adverse to complainant, or to dispute complainant’s title, he had to -discover his own title or show wherein the complainant’s title was deficient.

The titles being spread upon the pleadings, if the court could see that there was no valid legal objection to complainant’s title, there was then no reason why the court should not proceed to order partition. • When the statement of the title showed a disputed or doubtful legal title,- the court could dismiss the bill, and send the complainant to law or maintain the bill till a court of law had settled the title. Where the title was equitable the court of equity could always settle it. Lucas vs. King, 2 Stockton, 277; Coxe vs. Smith, 4 Johnson’s Chancery R., 271. In Street vs.

Benner,20 Fla., 700, it is held that although a court of equity is not the proper tribunal for trying the legal title-to lands, yet by the statutes of this State, regulating proceedings in partition where the bill shows the court has. jurisdiction, and the complainant’s title is put in issue by the defendant’s pleadings, the court is authorized to ascertain and adjudicate the rights and interests of the parties* and decree a-partition, if it shall appear that the parties are-entitled to the same without requiring the legal title to be first tried in a court of law. “ The plain meaning of the statute,” says the court, “ seems to be that all proper issues made in a suit for partition of lands should be tried and determined by the court in which the proceeding is commenced, and according to its rules, and whatever investigation is necessary to enable the court to adjudicate the rights • and interests of the parties may be conducted by it.

Having the power the court should exercise it.” Barring the effect of our statute, it must be that a party-in default would be required to make as good a showing as to the legal title to open a decree, as was necessary to send the case to a court of law; and, under the statute and the-above decision of this court, the showing as to merits must be of facts constituting a defence and in a distinct and satisfactory manner.

Taking her own statements, she and her-husband entered into possession under an arrangement of purchase from Hart, whose title she cannot deny having recognized it in 1866, when she claims to have paid the balance of the purchase money. The deed is dated December 81st, 1866, and there is no-room for her to claim an adverse holding against Hart’s title prior to this time. Here the rights of the daughters begin.

It is true she says the deed was delivered to her by the executors, “ under the erroneous impression that they had the power to do so,” she “ through ignorance of her rights therein, and without the advice of counsel, consenting thereto.” She could not have been ignorant then that she had paid part of the purchase money, and she makes no pretence that she did not know to whom the deed was made, or that she did not intend and consent that it should be made as it was, and vest the property in her daughters, for their exclusive benefit; or that she did intend it should vest in them as a trust for her benefit.

She does not inform us what part of the purchase money over the $19 paid out of her earnings was paid by her. It is very difficult to believe that it was not her intention that the deed which she has always held and is recorded should vest the property in her daughters for their benefit, particularly as after the lapse of eighteen years, she does not deny it. It is too late to construct a trust now. She does not show that the deed was taken during her second marrriage, but says that it was while Sidberry, her first ■ husband, was absent and reported dead.

If she is to be treated as a feme sole on account of his absence, then she could do as she pleased with her earnings, but if she could not be so treated, her earnings are not her separate property, 4 Otto, 580, even if it be that an investment of separate property by a married woman in the name of her children does not of itself presume an advancement to them.

The statement that she has remained in the undisturbed and undisputed possession of the land, and in control of the same, renting part thereof from time to time to different tenants, does not show that she ever disputed or disturbed the rights of her children, or ever brought home to them the fact that she, their mother, who had received in their infancy their title deeds, and had occupied the land with them, and managed it for them, claimed it or its rentals in opposition to them.

The assertion that she has rented and suffered at divers times since the respective marriages of the children each of them to rent and dwell upon part of the premises, and that complainants are now residing on part of the premises as her tenants, is not a discovery of title by “ adverse possession ” against the daughters; to say the most of it, it is a very loose way of setting up an acknowledgment by the children of her as their landlord. The terms and conditions of their occupancy, if set out, might lead to a very different conclusion than that their relation was one of landlord and tenant.

The facts constituting her defence, if she has any, do not distinctly and satisfactorily appear. 20 Fla., 236. The fact that while in possession under the circumstances stated, she permitted this property to sell for taxes, and holds a tax deed, creates no title against the daughters. Being their mother and having so long acted really as their trustee and protector, she cannot be permitted to thus suddenly assume a hostile attitude and deprive them of their property. Bur. on Tax., 352 ; Blake vs. Howe, 15 ; Am. Decisions and note: 33 Cal., 408 ; 38 Cal., 216 ; 24 Mich., 360.

There is nothing to show what amount has ever been expended on the property or what rentals she has received. VIII. There was a decree of sale, and a sale thereunder, and the deed was made to Hildebrandt, on the order of L’Engle, to whom property was knocked off. The sale was confirmed. Hildebrandt files a petition stating, among other things, that the deed was made to him, and that the appellant is in possession of the property, and refuses to deliver the possession thereof to him, and praying for a writ of assistance directing the sheriff to remove her and put him in possession.

Appellant answered, alleging in general terms that she is the owner of the premises by title paramount to the purchaser at such sale, and has at all times been in the undisputed possession, management and control of the premises ; that her title is by actual, peaceable and quiet possession, adverse to all persons for more than seven years, i. <?., from the year 1859 ; during which time she has cultivated it, built upon it, and kept it fenced, and setting up also her tax deed of March 17,1884, and alleging that Hildebrandt has commenced an action of ejectment which is still pending.

There was due notice of the application, and the Chancellor granted the writ. The appellant was not entitled on this application to renew the contest as to her title, which had been disposed of by the order on her petition, if not by the former decrees in the cause. The answer was a waiver of any informality as to the proceedings to obtain the writ. We do not mean to say, however, that they were not apt and sufficient. We see no reason why the writ should not have been granted. 4 Johnson’s Chancery R., 608 ; 82 Ill., 22; 13 N. J. (Eq.), 220; 1 H. & J., 187; 14 N. J. (Eq.), 38; 13 Ibid., 227 ; Hopkins, C. R., 422.

The mere commencement of the ejectment did not oust the court of equity of its jurisdiction or bar the remedy. 82 Ill., 22. Hot even an election of remedies was asked for. We have found it unnecessary to consider the pleadings and testimony in behalf of the appellees on the motion to open the decrees. They are, however, not comforting to appellants. What we have said practically disposes of the petition for a rehearing. The decrees and orders appealéd from are affirmed.