Farrell v. Forest Investment Co.

74 So. 216, 73 Fla. 191

• Court: Supreme Court of Florida
• Decided: January 31, 1917
• Status: Published

Opinion

Ellis, J.

(after stating the facts).—The appellant insists that the bill shows upon its face that the court was without jurisdiction and therefore upon the final hearing should have been dismissed, notwithstanding the answer. It is contended that the bill merely seeks an accounting between copartners," while'praying for partition of lands, and that partition of partnership lands cannot be decreed until the equities between the partners have been settled; that the bill seeks to adjudicate the rights of the parties upon such a variety of subjects so different in character that they should not be litigated in one suit. It is pointed out that the bill seeks to establish a resulting trust in certain lands, an accounting between copartners, to surcharge a partnership account and a partition of lands held by copartners. It is true' that the answer contains no demurrer to the bill upon any specific ground, but inasmuch as the answer sets up many matters of defense counsel seek the benefit therefrom either by way of answer, plea or demurrer. If the court was not wholly incompetent to grant the relief sought in the bill, the. method pursued to question the form of the bill, or the court’s jurisdiction, we think, would not avail. No question was raised until -after the testimony was taken (if then) as to whether the court had jurisdiction to entertain a bill for partition, to establish a resulting trust, and for an accounting. There are subjects which a court of equity has no power to hear and determine, even by consent of parties, but if the subject-matter be of such character that jurisdiction may be conferred by consent, the defendant will not be heard to complain if he makes no objection to a hearing, but participates in it. In this case a Master was appointed, much testimony was taken and a decree rendered upon the merits against the defendant who then makes objection here to the court’s jurisdiction. See Central Elevator Co. v. People ex rel. Moloney, 174 Ill. 203, 51 N. E. Rep. 254, 43 L. R. A. 658; Brewster v. Colegrove, (40 Conn. 105; Page v. Young, 106 Mass. 313; Detroit Motor Co. v. Third Nat. Bank, 111 Mich. 407, 69 N. W. Rep. 726; Whiting v. Root, 52 Iowa, 292, 3 N. W. Rep. 134; Cutting v. Dana, 25 N. J. Eq. 265; Baron v. Korn, 127 N. Y. 224, 27 N. E. Rep. 804; Mayo v. Murchie, 3 Mumf. (Va.) 358; United Shoe Machinery Co. v. Holt, 185 Mass. 97, 69 N. E. Rep. 1056; Richmond v. Bennett, 205 Pa. St. 470, 55 Atl. Rep. 17. The rule has several times been recognized by this court. See Griffin v. Orman, 9 Fla. 22; Williams v. Wetmore, 51 Fla. 614, 41 South. Rep. 545; DeCottes v. Clarkson, 43 Fla. 1, 29 South. Rep. 442; Rivas v. Summers, 33 Fla. 539, 15 South. Rep. 319. See also 10 R. C. L. 368 and authorities cited.

This bill had for its principal object a partition of thé lands owned in common by appellant and appellee, •which; exclusive of the lands in T. 8 S. R. 29 E., amounted to 4447.41 acres, a one-third interest in which Farrell conveyed to the Forest Investment Company "in 1908. The acreage in T. 8 S. R. 29 E. amounted to about eighteen hundred acres according to the deed from Farrell to the Forest Investment Compány, which lands were also described in the bill. So far as the acreage was concerned a tenancy in common was alleged to exist between the complainant and defendant as to all of it. There were two tracts of land embraced in the lands above referred to concerning which questions had arisen as to complainant’s' interest, which questions the court was asked to determine as incidental to .the main relief sought by the bill. Those questions arose out of the relations existing between complainant and defendant at the time when -the incidents occurred giving rise to the differences between them. The Forest Investment Company and the defendant were interested together as copartners in a turpentine business; their joint account was carried by the Peninsular Naval Stores Company under the name of R. L. Farrell and Company. In this business the Forest Investment Company owned a one-third interest. It owned as purchaser from Farrell an undivided one-third interest in- the lands described. As incident to the turpentine business of this partnership, by reason of considerations which arose affecting that interest and business, the two transactions, one involving the S. J2 of Section 8, and the other the S. y2 and N. W. y. of S. W■'y of Section 31, occurred. According to complainant these transactions were of such character and so affected by the trust relation which existed between the two parties that in equity and good conscience the act of the defendant was the act- of the partners, and the transactions were for their joint inferes! This question was incidental to the main relief sought and cannot in the view we have of the evidence be considered as the principal object of the suit; it certainly was not according to the bill. The partnership had terminated, the parties were merely tenants in common of the lands, one of them sought a partition which he had a right to ask for, it was discovered that his cotenant had not as partner in the turpentine business, but as one of the owners of the land, denuded it of a large quantity of cypress and cedar which he sold and converted the proceeds thereof to his own use to the exclusion of his cotenant. The accounting prayed for in this transaction of the defendant, was the other matter concerning which complainant asked relief. It was incident to the main purpose of the bill,‘and grew out of the relations of the parties as cotenants of the lands sought to be partitioned.

The objection that the bill was multifarious, we think, is not well founded. A bill is not necessarily multifarious because there may be united in it several causes of action. If all the different causes of action united in the bill grew out of the same transaction, and all the defendants interested in the same rights, etc., the bill will be maintained. Where the subject-matter of the controversy is encumbered with many conflicting claims equity will entertain a suit for determining and adjusting all these interests at once. The objection of multifariousness when made for the first time at the hearing will not be allowed where the real point in controversy can be determined as well in the one court as if there were many separate suits. The objection in this cause does not appear to be so grave as to interpose an obstacle to the proper administration of justice, and therefore should not be allowed. See 10 R. C. L. 429-435; Nelson v. Hill, 5 How. (U. S.) 127; Briges v. Sperry, 95 U. S. 401; Hefner v. Northwestern Mut. Life Ins. Co. 123 U. S. 747, 8 Sup. Ct. Rep. 337; Hamilton v. Whitridge, 11 Md. 128; Henderson v. Farley Nat. Bank, 123 Ala. 547, 26 South. Rep. 226; Fils v. Rosser, 162 Ala. 504, 50 South. Rep. 287; Emerson v. Gaither, 103 Md. 564, 64 Atl. Rep. 26; Johnson v. Black, 103 Va. 477, 49 S. E. Rep. 633, In dealing with the question of multifariousness the matter particularly to be considered is convenience in the administration of justice, and if this is accomplished by the mode of procedure adopted, the objection will not lie. This is the principle upon which the courts act in determining the validity of an objection of that character, it is no objection that thqre are several causes of action; they arose from the holding of this large tract of land in .common between the complainant .and defendant, convenience- was subserved and expenses and costs reduced by, the procedure adopted. No one can be said to have been inconvenienced, and the court had power to settle all the questions presented. Having taken jurisdiction ol the cause for one purpose, the court had power to proceed with the determination of.all the matters presented.. See Taylor v. Florida East Coast R. Co., 54 Fla. 635, 45 South. Rep. 574; Miller v. Louisville & N. R. Co., 83 Ala. 274, 4 South. Rep. 842; Allen v. Elder, 76 Ga. 674; Thomas v. Thomas, 250 Ill. 354, 95 N. E. Rep. 345; Doggett v. Hart, 5 Fla. 215; Griffin v. Fries, 23 Fla. 173, 2 South. Rep. 266; Capital City Bank v. Hilson, 64 Fla. 206, 60 South. Rep. 189; Carlton v. Hilliard, 64 Fla. 228, 60 South. Rep. 220. Under the statutes of this' State courts .of equity have jurisdiction to order the partition of lands. Sec. 1939 General Statutes of 1906, Florida Compiled Laws of 1914; Christopher v. Mungen, 61 Fla. 513, 55 South. Rep. 273.

The question of the right of a corporation to enter into a copartnership with an individual is not involved in this proceeding. Whether there was any power in the corporation to do so or not, the copartnership was formed, transacted business, and dissolved. This complainant does not seek by the bill to open any partnership accounts, nor does it seek an accounting as of one partner from another; but after terminating a partnership arrangement in a certain business it found itself tenant in common of certain lands with appellant, and filed a bill for partition seeking an account from its cotenant of the profits derived by him from the sale of certain timber from the common property. The first assignment of error is not sustained.

The assignments of error numbered from two to eight inclusive attack the decree as being erroneous for not sustaining certain exceptions to the Master’s report; for confirming the report as to its findings of fact and equities; for finding the equities to be with complainant, and- for decreeing that complainant was entitled to an undivided third interest in the one hundred and twenty acres of land in Section Thirty-one, and the South half of Section eight, and for adjudging that the complainant was entitled to an accounting from the defendant as to the proceeds of the sale of the timber from the lands, and as to the amount of such proceeds, and in ordering the defendant to pay to complainant a certain sum on account of taxes paid by the complainant on the- land. These assignments of error, as well as the remaining ones, twelve ih number, involve an examination of the evidence. The exceptions to the Master’s report are based upon the proposition that the evidence did not justify the different findings. Counsel in their brief - and during the oral argument urged that the report of the Master and the decree following it were unsupported by the evidence. Wt think it would be of no interest to the'parties to discuss the evidence, which was quite voluminous and conflicting. The Master carefully examined it and made an exhaustive and clear analysis of it. His report, we think, was fully sustained by the evidence and the decree which followed the Master’s findings contains no- error that we'have discovered. There was ample evidence to support the finding that the defendant and complainant as Farrell and Company made the first payment on the purchase price of the one hundred and. twenty acres in Section 31,' and that the land was purchased at the time for the benefit and use of the partnership; and to support .the theory of the bill that the defendant was in conscience Dotincl to have repurchased the South half of Section 8 for the benefit of himself and complainant. While the copartnership between complainant and defendant had terminated when the sale was made to Yelvington, yet it was made on defendant’s representations some time before the dissolution of copartnership, which representations were afterwards discovered to be untrue. Not that there was any design on defendant’s part to misrepresent to his cotenant any facts, but the fact remains that the statements he did make constituting the reasons for selling were discovered to be unfounded, whereupon he repurchased the lands in his own name. He should not be permitted to profit in that manner at the expense of his cotenant.

The Chancellor’s conclusions on the facts will not be reversed unless it clearly appears that he erred in such conclusions. City of Jacksonville v. Huff, 39 Fla. 8, 21 South. Rep. 774; Waterman v. Higgins, 28 Fla. 660, 10 South. Rep. 97; Lucas v. Wade, 43 Fla. 419, 31 South. Rep. 231; Fuller v. Fuller, 23 Fla. 236, 2 South. Rep. 426; Sarasota Ice, Fish & Power Co. v. Lyle & Co., 58 Fla. 517, 50 South. Rep. 993. But appellant contends that although the bill waived an answer under oath, the defendant made oath to his answer and was therefore entitled to the benefit of an answer under oath. Where an answer is made under oath the allegations contained in it which are responsive to the bill and which set up facts to which other testimony could- be received are to be taken as true unless disproved by evidence of greater weight than the testimony of one witness. See Carr v. Thomas, 18 Fla. 736; Carter v. Bennett, 6 Fla. 214; Day v. Jones, 40 Fla. 443, 25 South. Rep. 275; Pinney v. Pinney, 46 Fla. 559, 35 South. Rep. 95. The above rule rests upon the equitable principle -that if defendant is put upon his oath by his adversary, credit shall be giveri® to his own declarations unless they are contradicted by at least two witnesses, or by written documents, or by evidence greater than the testimony of one witness. See White v. Walker, 5 Fla. 478. To have this weight, however, the answer must be direct and positive, must be under oath, and relate to such facts as other testimony could be received to establish. It should not as an example be permitted to show that the intent and meaning of the parties to a written agreement was contrary to what appears on the face of it, as said by the court in Carter v. Bennett, supra. The modern rule according to the American decisions is that the sworn answer is evidence in the defendant’s favor in so far as its statements are responsive to the allegations of the bill. In other words, when the material allegations of a bill are met by a responsive answer, under oath, tile allegations of the bill must be supported by the testimony of two witnesses, or one witness and corroborating circumstances, otherwise the'defendant’s answer will prevail and the bill be dismissed. The practice of answering under oath is of ancient origin, and in this country is universally required except where the practice has been changed by statute or rule. Union Bank of Georgetown v. Geary, 5 Pet. (U. S.) 99; Conley v. Nailor, 118 U. S. 127, 6 Sup. Ct. Rep. 170; Dravo v. Fabel, 132 U. S. 487, 10 Sup. Ct. Rep. 170. In order for the plaintiff to avoid the effect of an answer, that is, if he was unwilling that it'should have the effect of evidence against him, he was required to expressly waive in the bill the oath of the defendant to the answer. Conley v. Nailor, supra. This was the effect of Rule 41 of the Rules of Practice in the Courts of Equity of the United States as prescribed by the Supreme Court of the-United States and amended in 1871.

Section 1877 of the General Statutes of Florida, 1906, Florida Compiled Laws, 1914, provides as follows: “In the absence of provisions of the law-or rules of practice of this State, the rules of practice in the courts of equity of the United States, as prescribed by the Supreme Court thereof, under the act of Congress of the 8th of May, one thousand seven hundred and ninety-two, shall .be rules for the practice of the courts of this State when exercising equity jurisdiction; and when the rules of practice so directed by the Supreme .Court do not apply, the practice of the courts shall be regulated by the practice of the high gourt of chancery of England.”

In the case of Kahn v. Weinlander, 39 Fla. 210, 22 South. Rep. 653, this court speaking of the above Act which was passed in 1828 and has been continued as law in this State down to the adoption of the General Statutes of 1906, said: “The purpose of the Act referred to was to make the rules of practice adopted by the Supreme Court of the United States in the equity courts of the United States applicable in chancery causes in the courts of this State, where provision was not made on the subject by the Act, and it makes no difference whether the rules provided for were adopted before or after the passage of the Act, provided there is no statutory provision covering the subject. We are of the opinion that such was the purpose of the Act, and it should be so construed.” Under the.provisions of the Act of 1873, Chapter 1938, the .Supreme Court of Florida adopted rules governing the practice and proceedings in the Circuit Courts of Florida in Equity. The Supreme Court of-the United States had prior to that time, however, amended Rule 41, providing that the complainant may in his bill waive an answer under oath in which case the answer should not be evidence in his favor unless the cause was set down for hearing on bill and answer only. The result of all this, as said by this court in the case above cited, is that the amendment to Rule 41 as adopted by the Supreme Court of the United States is in force in the courts of chancery of this State, because no rule of this court adopted under the Act of 1873 was in irreconcilable conflict with it. Now counsel for appellant contends, and we .think correctly, that as the new rules of practice for the courts of equity of the United States promulgated by the Supreme Court of the United States in November, 1912, make no provision for the complainant waiving in his bill an answer-under oath.; and. as the ■new rules abrogated the old ones, and as there is no provision in the rules prescribed by the Supreme Court of Florida on the subject, a complainant cannot deprive the defendant of the benefit of his answer under oath by expressly waiving it in the bill.

In the case of Clements v. Moore, 6 Wall. (U. S.) 299, the' court through Mr. Justice Swayne, said that it was the defendant’s right to answer under oath, and the complainant could not deprive her of it. That such was the settled equity practice where there was no regulation to the contrary. This announcement of Judge Swayne based upon an opinion by Judge.Kinney in Armstrong v. Scott, 3 Greene (Iowa) 433, seems to be in accordance with the weight of authority on that point in the United States. See 10 R. C. L. 545-549. Why an answer not under oath should have any greater force than any other pleading in a cause is not apparent. If the oath was waived under the old rule, the complainant was still required to prove the allegations of his bill. As the purpose of requiring an answer under oath was for the complainant’s advantage in that it required the defendant to purge his conscience .upon the matters alleged, and as the price of that advantage was the benefit to the defendant of his responsive averments as evidence in his behalf, the reason of the old rule adopted in this and other jurisdictions which permitted the waiving in the bill of the oath to the answer is obvious and was exceedingly salutary. But although the appellant’s contention is correct upon this point, viz. that the complainant cannot since the adoption of the new rules by the Supreme Court of the United States, deprive the defendant of the “right” of swearing to his answer and thereby have more than the benefit of one witness in his behalf, the sworn answer does not have that effect as to new matter set up by way of affirmative defense; nor as to averments of facts which testimony would not be admissible to prove. The answer in this case contains many such averments, and certainly cannot as to such averments be given the same effect as a sworn answer which is responsive to the allegations of the bill. We think the evidence offered by the defendant to contradict the terms of the deed from Wilson to Farrell, and from Farrell to complainant, was properly rejected; that the Master’s conclusion which was confirmed by the court as to the value of the timber cut from the lands cannot be disturbed in view of the answer of the defendant, and the evidence in the case, and that the matter of requiring the defendant to refund to the complainant his proportion of the taxes paid by the complainant on the lands was proper under the prayer for general relief.

It was contended in the oral argument that the burden was upon the 'complainant to prove that it was authorized to do business as a corporation in this State, and in the absence of any evidence on the subject it must be held to be without such authority. The bill expressly alleges that the complainant is so authorized, the answer does not deny the allegation. The statutes of this State, Sections 2682 et seq. General Statutes of 1906, do not expressly prohibit a foreign corporation from bringing a suit in this State until it has complied with the requirements of the statute. The reason for the omission may have been to enable such corporation to have the aid of the courts in the protection of its property rights where the court does not have to give force or validity to an executory contract by such a corporation. The rule seems to be that when the defendant wishes' to raise the question of the corporation’s right to maintain a suit in this State he should make the defense specially. See 12 R. C. L. 98-101. The point raised by appellant that a corporation cannot enter into a copartnership with an individual and therefore is not entitled to an accounting from its so-called partner, we think, is not involved in this case. The partnership between the Forest Investment Company and the appellant which existed from 1908 to some time in 1911 had been dissolved, its affairs settled and all obligations discharged so far as the pleadings and evidence show. The contracts which the partnership made have been executed. The partners were left as tenants in common of certain lands. The relations which they bore to each other as tenants in common required the exercise of good faith toward each other in all transactions pertaining to the common property, and because of these relations and the reciprocal duties and obligations the court undertook to settle the the disputed question as to complainant’s interest in the S. j/2 of Section 8 and the one hundred and twenty acres in Section 31, and require an accounting for the value of the timber cut from the common property and in the exercise of the jurisdiction we think the court acted clearly within its power and that the evidence does not show that the conclusions reached were erroneous. So the decree is affirmed.

Browne, C. J., and Taylor, Shackleford and Whitfield, JJ., concur.