Jane Atkinson and Others, Appellants, v. K. F. J. Schilman and Others, Appellees, 60 Fla. 301

Cockrell, J. This is a bill for. partition and accounting filed by the complainants as heirs of J. H. M. Atkinson, who was one of the five children of Shadrick Atkinson, deceased, who in his life time, together with one Thomas M. Crocker, oAvned the land lying in Marion county, -sought to be partitioned—the suit is brought against the other heirs of Shadrick Atkinson and the Crocker heirs, the respective interests being set forth, and also against certain phosphate miners, who have been operating under leases, as to whom discovery only is sought of the amount and value of the phosphate so mined.

The original bill was filed in January, 1908, and after various amendments the bill was dismissed upon demurrer, the only grounds passed upon by the court or urged here being estoppel by a decree of partition rendered in Thomas county, Georgia, in 1892, laches and that the remedy Avas at law. The bill is very voluminous, but as Ave shall confine ourselves to the points passed upon by the chancellor, we shall state only so much of the bill as may be needed to a clear and fair exposition on those points.

The bill attempts to set forth, but imperfectly, a former proceeding in the same court Avhereby it is claimed that in 1891 these complainants or their ancestors were decreed partition of these lands and secured deeds for their shares. If any equity is expected from this source a more carefully drawn statement should be deAdsed. The Georgia decree arose as follows: A petition was addressed to the Superior Court of Thomas County, Georgia, by Edward Atkinson, alleging that petitioner “Avas a tenant in common with C. C. Atkinson of said county, with the heirs of Elizabeth Rawls, formerly Atkinson, viz: Isaac N.

RaAvls, Columbus P. RaAvls and Martha Rawls Hodge, and Avith Montholon Atkinson of the State of Florida, and with the heirs of J. H. M. Atkinson, to-wit: Columbus Atkinson, Thomas Atkinson and Mrs.

James Lancaster, formerly Atkinson, of Dodge county, and John ■Washington Atkinson of Pulaski county, Georgia, of certain lands the principal part of which lie in said county of Thomas, to-wit: Lots one and eight (1 & 8) in square J, lots seven and eight (7 & 8) in square C, lots four and five (4 & 5) in square F, lots three and four (3 & 4) in square HH, all in the city of Thomasville, in said county of Thomas, this designation being that of the original survey of said city; also of lots number one hundred and ninety-eight (198) and number three hundred and thirty-five (335) in the eighteenth district (18) of Thomas county, Georgia; also lots number two hundred and sixteen (216), two hundred and seventeen (217) and three hundred and sixteen (316) containing each, two hundred two and one half (202 1/2) acres in the twentieth (20) district of originally Pulaski now Dodge county, Georgia.

Petitioner further shows that he and his cotenants inherited this property from their parents Shadrick and Mary Atkinson, formerly of said county of Thomas; that there are five shares into which this property should be divided, to-wit: one to petitioner, one,to O. O. Atkinson, one to the heirs of Elizabeth Rawls, as above named, one to the heirs of J. EL M. Atkinson as above named, and one to J. L. M. Atkinson.

That there has never been any administration on the estate of said Shadrick and Mary Atkinson, nor any division thereof; that the property lying-in the county of Thomas has been and is now under the control of C. G. Atkinson one of the distributees above named and that in Dodge county,'petitioner is informed, is in the possession of Columbus Atkinson one of the heirs of J. EL M. Atkinson; that some deeds have been made between C. C. Atkinson and J. EL M. Atkinson prior to his death, making a partial division of their interests the full nature and extent and effect of which petitioner does not know.

That no accounting has ever been made by either of them (C. C. Atkinson and Columbus Atkinson, son of J. H. M. Atkinson) to petitioner or so far as he is informed to any of the other heirs of the rents and profits of said lands. Petitioner therefore prays that notice of this application be served on the other heirs at law as above named, so that the court after examining into the title to said property may appoint Partitioners as provided by law at the next April term, A. D. 1890, of said court and petitioner will ever pray, etc.

HANSELL & MERRILL, Attys for Petitioner.” Upon this petition a consent decree was entered as follows: “All parties interested consenting thereto, it is ordered, adjudged and decreed that lots 216, 217 and 306 (?) in the 20th district of originally Pulaski, now Dodge, remain the property of the heirs at law of J. H. M. Atkinson, in full settlement of any and all claim or claims they, or any of them, may have had, or may have, to any interest in or to any property that Mary, A. E. or Shadrick Atkinson, either, or both, may have owned, or may have 16ft, in Thomasville, or Thomas county, or elsewhere.

That in settlement of the claim of C. C. Atkinson for care and attention to his mother, and money expended on her account, and on account of taxes on the'property in Thomas county, and Thomasville, Georgia, that all the money collected by him from rents, issues and profits of said property be his without liability to account to any one there for; and that the title in fee simple to the lots one (1) and eight (8), in square letter G (the place where said O. C. Atkinson now lives, and has lived for years), be vested absolutely in said C. C. Atkinson, his heirs and assigns and that said C. O.

Atkinson in consideration of the above, relinquish any and all claims against said estate of Mary, A. E. and Shadrick Atkinson, either or both, or the heirs thereof, for any money paid out or expended for or on behalf of said estate or estates as heirs thereof. That all the rest and residue of the property of Mary, A. E. and Shadrick Atkinson, in Thomas County, including lots five (5) and (6) in square letter C and seven and eight in square H.

BL, lots eighty-one, eighty-two, eighty-three, eighty-four, in block h, column 4, west, and eighty-five (85) in block 9, col. 4, west, in Thomasville, and lot 198, except 50 acres in the southwest corner, in C. square, which is set apart to G. E. Alexander and E. G. Mitchell in accordance with contract for services with C. C. Atkinson defendant ejectment suit for said lot, and 335 in 18th district of Thomas County, Georgia, latter containing 250 acres, each, be divided into five equal parts according to its valuation and assigned as follows: one fourth to C. C.

Atkinson; one fourth to Edward Atkinson; one fourth to Christopher Atkinson; one fourth to the heirs of Elizabeth Eawls, formerly Atkinson, now deceased, to-wit: Isaac A. Eawls, Columbus C. Eawls and Martha Eawls Hodge; after these shall have first been set apart and assigned, out of the whole property, to Eobt. G. Mitchell and W. W. Hammond, together as attorneys for C. C.

Atkinson in this matter, a portion of said property of the value of five hundred dollars, and to Hansell and Merrill, attorneys for Edward Atkinson, a portion of said property of the value of five hundred dollars; and that the rents from the property now occupied by W. C. Mewbern, that may be due up to the first of August, 1892, be applied to the payment of the costs of this proceeding, including the fees, to-wit..........dollars to the sheriff, E. P.

Doss, as receiver in this matter, and of the commissioners hereinafter to be named; and should said rents not be sufficient therefor, then the said commissioners shall have authority to sell, at public or private sale so much of said estate as may be necessary to make up the deficit to be made first out of the building of W. C. Newbern, and rents not paid to Ms, and should said rents be more than enough to pay above stated items, then the balance to be divided among the four distributees above stated, and that S. L. Hayes, E. W. Mallette and R. P.

Doss be and they are hereby appointed commissioners to apportion and divide and assign said property as above set out. AUG.’h: HANSELL, Judge S. C. S. C. We consent to foregoing decree: HANSELL & MERRILL, W. W. HAMMOND P. G. MITCHELL MacIntyre & McIntyre.” Much stress is laid upon the last word in the first paragraph of the decree. It is urged that as the heirs of J. H. M.

Atkinson released all rights to any interest in the property of the ancestor in Thomasville, Thomas County or “elsewhere,” they released all claim to the Florida land, and that to hold otherwise, Avould be not only to destroy the law of estoppel but to undo by collateral attack a judgment of a court of competent jurisdiction. We fail to find either principle involved. Ordinarily judgments and decrees are to be construed with reference to the subject-matter before the court pronouncing them, and there is nothing to indicate that the court or parties had the Florida lands in remotest contemplation.

That court was dealing Avith lands in Georgia lying either in Thomas or Dodge counties in that State and there is nothing upon this record as it now stands to show even persuasively that it attempted to stretch out its arms across State lines and render a decree beyond the scope of the pleadings and beyond its possible jurisdiction. The phrase “or elsewhere” should be confined upon the showing now made to lands within the possible scope of the petition, though not specifically named in the decree. JVe think the court in error in holding the Georgia decree a bar to this suit.

As to laches we learn from the bill that one Dupre Hodge represented all the heirs in the management of the Florida property for some years prior to his death, when the defendant C. O. Rawls was appointed attorney in fact for the defendant heirs, except Matilda Badger, and executed in 1890 the phosphate lease now held by successive conveyances by the defendants Schilman & Bene. The complainants who were non-residents, some of them minors, learned of this lease in 1904 and through an attorney then living in Marion County, made demand upon Rawls for their share of the royalties from the phosphate.

As exhibits to the amended bill are attached letters from the said Rawls written in 1904 and 1905 in one stating that the royalties were so small as not to cover taxes, and in another sending a small check, and in another asking what proportion should be given to the childern of Washington Atkinson some of the complainants the last letter of March 28, 1905, states in effect that it appeared the mine was giving out and was a losing venture.

The attorney employed by the complainants at Ocala had moved away, and they were in some degree lulled into non-action and an indisposition to further expense by the letter of Rawls which plainly told them that it would be useless to expend further energies in that direction for the time. This bill was filed four years iater, and we find from its allegations no such unexcused laches as to prevent recovery. The remaining attack on the bill is based upon the theory that the defendants’ hostile possession drives the complainants to an action at law.

As to the phosphate lessees, they are parties for the purpose of discovery and their right to mine is not to be interferred with, the lease being recognized and ratified by the complainants. The continuity of any possible ouster by one set of co-tenants was broken when their attorney in fact in 1905 recognized the rights of these complainants, so that upon this bill they cannot claim title by adverse possession. The only title they have, as set forth in this record, is from the common ancestor and his co-tenant, and we think this case clearly ruled by the decision in Camp Phosphate Co. v.

Anderson, 48 Fla., 226, 37 South.

Rep., 722, where we held that “Whenever the case is properly one for partition, one whose dona fide object is the partition of lands between common Owners thereof, one or more of whom are complainants and the others are defendants, and they or some of them are in possession, then all controversies between them as to the legal title and right of possession may and should be settled by the chancellor as authorized by statute.” The bill might be framed with more definiteness and clearness, but it is sufficient to withstand the attacks made which were sustained by the Circuit Court or have been brought to our attention in the argument, printed or oral, for the appellees.

The decree is reversed and the cause remanded for further proceedings. Whitfield, C. J., and Shackleford, J., concur.; Taylor, Hooker and Parkhill, J. J., concur in the opinion.