Franklin L. Terrell, Appellant, vs. Fred A. Weymouth, Appellee, 32 Fla. 255

Taylok, J.: The appellant, on the 29th of February, 1888, sued the appellee in ejectment, in the Circuit Court of Or-auge county, for the recovery of. the possession of art undivided one-twelfth interest and estate in and to the s. w. 1-4 of the n. w. 1-4 of

section 36, township 22- south, range 29 east, containing 40 acres. The parties by agreement waived a jury and submitted the cause to the judge of the court below for adjudication upon both the law and facts. The trial resulted in a judgment in the defendant’s favor, and the plaintiff appeals here. From an agreed statement of facts it appears that Lucinda Terrell, the mother of the plaintiff, died in August, 1860, owning in her own separate right, the whole of the n. w. 1-4 of said

section 36, of which the land in controversy is a part. That she left four heirs at law, viz: her husband, (íeorge W. Terrell, Mary Hughey and Barnard Hughey, two children by a former marriage, and Franklin Terrell (the plaintiff,) her child by her last husband. That the husband, Gfeorge W. Terrell, conveyed his undivided one-fourth interest in said land to one Henry Bobinson. That Bobinson afterwards died, and Catherine F. Beaves became his administratrix. That the said Catherine F.

Beaves, as administratrix of Bobinson, on October 16th, 1873, filed a petition in the Circuit Court of Orange county for the partition of said land against William J. Brack, as guardian ad litem for the minors, Mary Hughey, Barnard Hughey and Franklin L. Terrell. That a decree for the sale of said land for partition -was rendered in said suit, and three commissioners were appointed to make the sale thereof; and that said commissioners sold the same for partition on September 4th, 1874; James P.

Hughey, as guardian, for the two minor heirs, Mary Hughey and Barnard Hughey, becoming the purchaser of 123 ¿acres that included the lands sued for herein, and taking a deed to himself, for their benefit, as guardian.

That the plaintiff, Franklin Terrell, arrived at 'the age of 21 years on the 23rd day of June, 1881, ;and then had a final settlement with his guardian, in which he received from his guardian the amount of Jus full pro rata share of the money arising from the ¡sale of said land under said partition proceedings, 'but did not know at the time that the money came .from the sale under said partition proceedings. That a, short time before bringing this suit he paid the amount so received into the registry of the court below, with interest from the date of said partition .sale as a tender or refunding.

That the plaintiff would be 28 years of age on June 23rd, 1888. That in 1877 Rarnard Hughey, one of the wards for whom James P. Hughey, as guardian, purchased said land, died a minor, unmarried, and without having conveyed his interest in said land, and leaving as his sole heirs at law his sister of the full blood, Mary E. McCall (nee Mary E. Hughey), and the plaintiff, Franklin L. Terrell, who was his half brother. That on the 23rd day -of June, 1881, upon coming of age, the plaintiff con: veyed by warranty deed to one John Gf.

Sinclair, from whom the defenant derives his title, an undivided one-fourth interest in and to the 40 acres of land out of which the undivided one-twelfth interest is sought to be recovered herein, for the consideration of $200; and that Mary E. McCall (wee Hughey), the plaintiff’s half-sister, and her husband conveyed to the said John Gr. Sinclair by deed the other three-fourths interest in .said 40 acres. That the defendant, and those under whom he claims, have been in the quiet and adverse possession of said land under claim of title since the partition sale to James P.

Hughey, as guardian, on 'September 4th, 1874, and that the defendant is a pur-chaser for value. The plaintiff admitting that there is a regular chain of title from the said James P. Hughey, guardian, down to and in the defendant. By the agreement both parties were to have the privilege of introducing other evidence outside of the above facts agreed upon. The plaintiff introduced in evidence the original record of the proceedings in the partition suit instituted by Catherine P. Reaves, as administratrix of the estate of Henry Robinson deceased, against W. J.

Brack, as guardian ad litem for the three minor heirs of Lucinda Terrell, deceased, including the petition, various •orders appointing commissioners in partition, the report of the commissioners of their inability to divide the land in severalty without detriment to the interests of the parties entitled, the decree of the court ordering the sale for partition, the report of the sale and decree confirming the same.

The plaintiff’s object in introducing this record was to show that said partition sale w as void because the minor heirs of Lucinda Terrell, including himself, were not properly made parties thereto, and because the petitioner, Catherine P. Reaves, in her capacity as administratrix of the estate of Henry Robinson, deceased, could not alone maintain proceedings for the partition of lands in which her intestate was interested. If this partition sale was valid, then by the purchase thereat, the two minors, Mary E.

Hughey and Barnard Hughey, the half-sister and half-brother of the plaintiff, became vested with the title to the entire tract of land left by their mother, each of them acquiring a one-half interest therein; and upon the death of Barnard while still a minor and without issue, his thus acquired one-half interest descended to his sister Mary E. and to bis half-brother, the plaintiff, Franklin L.

Terrell, in the proportion of two-thirds of such half interest to his sister of the full blood, MaryE., and the other one-third thereof to his half brother, tbe plaintiff, which would have vdsted in the - plaintiff, by descent from his half-brother, a one-sixth interest in the entire tract.

But if such sale was a nullity and void as to all of said three minors, then each of them owned a one-fourth interest only by descent from their mother, Lucinda Terrell; and, upon the death of Barney Hughey, as aforesaid, his one-fourth interest descended in the proportion of two-thirds thereof to his sister of the full blood, Mary E., and the other one-third thereof to his half-brother, the plaintiff, entitling Mary E. to her own one-fourth plus two-twelfths inherited from Barnard, equaling eight twelfths of the whole; and entitling the plaintiff to his own one-fourth plus one-twelfth, inherited from his half-brother, Barnard, equaling four-twelfths of the whole.

The plaintiff does not dispute the sale and conveyance by him to John Gr. Sinclair of a one-fourth interest in the forty acres in controversj7; but seeks by this suit to annul the partition sale, and thereby to make it appear that he only sold and conveyed to John (x. Sinclair his one-fourth interest in the 40 acres in dispute that he inherited directly from Ms mother, and that he still owns and retains the one-twelfth interest therein, that he is now contending for, that he inherited from his half-brother, Barnard Hughey.

That the partition proceedings and sale were void, we have no doubt, 1st, because Catherine F. Reaves, in her capacity as administratrix of Henry-Robinson, deceased, had no authority to institute or maintain such proceedings (Whitlock vs. Willard, 18 Fla., 156; Greeley vs. Hendricks, 23 Fla., 366, 2 South. Rep., 620); and, 2nd, because the three minors interested were not made parties thereto by having pro-' ■cess served upon them personally. McDermott vs. Thompson, Executor, 19 Fla., 352; s. c., 29 Fla., 299, 10 South. Rep., 584.

But the appellee contends tHat the ajipellant is estopped by his conduct, actions and declarations since said partition sale and since arriving at lull age, from now assailing or questioning its validity; and that his conduct, acts and declarations ■since his arrival at the age of his majority amount to such an acquiescence in and ratification of such partition sale as to preclude him from now gainsaying or attacking its validity.

Equitable estoppel, or estop-pel by conduct, so far as it relates to the trial of title to land, is defined to be: “That doctrine by which a party is prevented from setting up his legal title, because he has. through his acts, words or silence, led another to take a position in which the assertion of the legal title would be contrary, to equity and good conscience.” Sedgwick & Wait on Trial of title to land, sec. 843.

Whether the plaintiff is estopped depends upon the facts and circumstances of the caseIt appears from the admissions and proofs that upon his arrival at the age of his majority, the plaintiff received in money from his guardian, in a settlement then had with him, his full pro rata share, as an heir at law of his mother, of the proceeds of the . partition sale of the entire tract of land.

There is no allegation or pretence, even that the land when sold for partition •did not bring its full and fair value at that time,- or that the amount received by the plaintiff from his guardian as his share of the proceeds of such sale was ¡not a full and fair equivalent at that time for his interest in the land sold. His half-sister and half-brother, through their guardian, became the purchasers at such partition sale, and thereby became clothed with some semblance of title by which they believed they became vested with a valid title to a one-half interest and estate, each, in and to said land.

The parties have admitted that the plaintiff, at the time that be accepted from his guardian his share of the proceeds of such sale, was ignorant of the fact that the money arose out of or came from such sale, but it; is not shown how long thereafter the plaintiff continued in ignorance of such fact. John ~-.

Sinclair, from. or through whom the defendant derives his title, swears that the plaintiff, at the time he executed to him the warranty deed to the one-fourth interest in said 40 acres of land (a part of which is the lana in controversy), represented to him and told him that all the interest that he could own in said land was a quarter interest therein that lie inherited from his deceased half-brother, Barnard Hughey.

From the proofs it appears that all the parties acted under the belief that upon Barnard Hughey's death, his half-brother, the plaintiff, inherited an equal share of his half interest acquired at the partition sale, as did Barnard's sister of the full blood, Mary F., which would entitle the plaintiff, as lie represented to Sinclair, to a one-fourth interest in the whole. This understanding ~yas acted upon, too, by Mary F., since we find her conveying to Sinclair a three-fourths interest in the same 40 acres. only a short while before the plaintiff conveyed the~ remaining one-fourth interest therein.

That the plaintiff did represent to Sinclair that his only interest in the land was that which he derived by descent from his deceased half-brother, and that such interest was a one-fourth interest, is not denied. He admits that Sinclair purchased the other three-fourths interest from his half-sister, Mary E.

He remains silent and. permits his half-sister to assert title in herself to three-fourths of the property; and, in silence, permits Sinclair to purchase such three-fourths interest from her,, and asserts at the same time that he owns only one-half of his deceased brother’s half interest, or a fourth of said land, and, upon such assertion sells and conveys such interest to Sinclair, waits in silence for nearly seven years until the land has ceased to be longer-known by the government numbers of its original survey, as when sold by him, and has acquired a description as part of a city before undertaking to assail such partition proceedings.

Though the plaintiff may not in fact have known at the time that lm received from his guardian his share of the proceeds of the partition-sale, the source from whence the money came, yet when his half-brother died, and he became the claimant as 7iis heir at law of one-fourth interest in the-whole tract as being the equivalent of one-half of the-interest that his deceased brother owned therein, he-must haye known that his brother’s interest was a half interest, and how his half-brother acquired such half interest therein, that it was by means of such partition sale.

If he was ignorant thereof, then under the circumstances, in view of his undenied assertions to-Sinclair, such ignorance on his part was inexcusable.. Sinclair swears that when he accepted the deed to- the-one-fourth interest from the plaintiff he would never have accepted it had he not believed, and had not the plaintiff asserted and believed, that such fourth interest was all the interest that the plaintiff had; and' this is not denied or contradicted in any way.

Holding himself out to Sinclair as being the owner by descent from his deceased half-brother of one-half of such de-oeased brother’s one-half, and actually receiving pay for and conveying such interest as being inherited from such brother, was a recognition and acknowledgment upon his part that his said half-brother did own a half interest in the whole of such tract of land, and such half interest being acquired by such half-brother at such partition sale, amounted, under the circumstances, to such an acquiescence in and ratification by him of such sale, that he is now estopped from assailing its validity.

The judgment appealed from is, therefore, affirmed.