Pinney v. Pinney

46 Fla. 559

Opinion

ShackeeRord, J.

{after stating the facts). — This is another “of the many cases in this court wherein we are left to make an independent investigation for authorities in support of the judgment of the court below, without the aid of a brief or argument on the part of the appellee,” and again we call attention to the language used by this court in Chamberlin v. Lesley, 39 Fla. 452, text 456, 22 South. Rep. 736.

An examination of the bill discloses the fact that it is not very artificially drafted, some of the allegations therein being confused and contradictory. It is well settled by this court, that in equity, as well as at law, a pleading is to be most strongly construed against the pleader thereof. Rich ardson v. Gilbert, 21 Fla. 544, text 547; Herrin v. Brown, 44 Fla. 782, 33 South. Rep. 522; Johnson v. McKinnon, 45 Fla. 388, 34 South. Rep. 272; Stockton v. National Bank of Jacksonville, 45 Fla. 590, 34 South. Rep. —. It is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing. Johnson v. McKinnon, supra; Stockton v. The National Bank of Jacksonville, supra. “It is also an established rule of chancery practice, and of pleading and practice generally, that the allegata and probata must correspond. However full and convincing may be the proof as to any essential fact, unless the fact is averred, proof alone 'is insufficient. All the evidence offered in a case should correspond with the allegations and be confined to the issues.” Tate v. Pensacola, Gulf, Land & Development Co., 37 Fla. 439, 20 South. Rep. 542 ; Lyle v. Winn, 45 Fla. 419, 34 South. Rep. 158; Stockton v. The National Bank of Jacksonville, supra; Smith v. Guckenheimer, 42 Fla. 1, text 36, 27 South. Rep. 900; Anderson v. Northrop, 30 Fla. 612, 12 South. Rep. 318; St. Andrews Bay Land Company v. Campbell, 5 Fla. 560; Phelan v. Phelan, 12 Fla. 449, text 467; McKinney v. County Com’rs of Bradford County, 26 Fla. 267, text 273, 4 South. Rep. 855; Thornton v. Campbell’s Executors, 6 Fla. 546.

As noticed in the statement preceding this opinion, a special replication was filed under oath by appellee to the answer, although special replications have been expressly abolished in this State by equity rule 66. It is true that section 1423 of the Revised Statutes provides that a special replication to an answer may be filed by leave of the court or judge thereof for cause shown, but it does not appear that any such leave was sought or obtained or that any cause therefor existed. Neither is it necessary or customary for replications to answers to be filed under oath. However, said special replication was properly treated by the parties and the court below as a general replication, and we shall so treat it here. See Shaeffer v. Weed, 3 Gilm. (Ill.), 511; 1 Brack Mod. Eq. Pr., sec. 473. When a replication is filed to an answer it thereby puts in issue all the matters alleged in the bill and not admitted by the answer, as well as those matters contained in the answer which are not responsive to the bill. Stackpole v. Hancock, 40 Fla. 362, text 380, 24 South. Rep. 914; 18 Ency. of Pl. & Pr., 683; Hume v. Scruggs, 94 U. S. 22; Smith v. St. Louis Mutual Life Ins. Co., 2 Tenn. Ch. 599. When the answer concludes with the usual general denial found in answers in chancery, as does the answer in the instant case, this is sufficient to make an issue on material allegations in the bill not admitted in the answer and to which no response is made. Such statements can not be taken as admitted to be true, but must be proved by complainant, though it is not required that they be proved by the amount of testimony required to overcome a sworn responsive answer, hut they must be established by at least a preponderance of the testimony. Stackpole v. Hancock, supra; 1 Ency. Pl. & Pr., 930, b. Matters set up in the answer which are not responsive to the bill, as matters set up b}' way of avoidance, must be proved by the defendant, and the burden is upon him to establish such matters by a preponderance of the testimony. Orman v. Barnard, 5 Fla. 528; LaTrobe v. Hayward, 13 Fla. 190; Humes v. Scruggs, supra.

It is also a well-settled principle in this State that “an answer responsive to the bill denying the allegations therein is conclusive upon that question, unless overcome by the testimony of two witnesses, or of one, with corroborating circumstances,” provided said answer is. under oath, the oath thereto not having been waived in the bill. Stephens v. Orman, 10 Fla. 9; Carr v. Thomas, 18 Fla. 736; Foster v. Ambler, 24 Fla. 519, 5 South. Rep. 263; Kellogg v. Singer Manufg. Co., 35 Fla. 99, text 105, 17 South. Rep. 68; Day v. Jones, 40 Fla. 443.

An examination of the bill and answer discloses the fact that almost every material allegation in the bill is expressly denied in the answer. Has the effect of the answer as evidence been overcome? We think not. The specific fraud alleged in the bill is the dishonest and untrue representation made by appellant for his own benefit that the deed executed to him by appellee was, in legal effect, the same as a will. This is the essence of the bill and forms the basis of appellee’s claim. This allegation is expressly denied in the answer, and the evidence signally fails to sustain it. The appellee herself did not so testify. She testified that she asked appellant when he came to her house in company with Mr. Johnson Hooton, who became one of the subscribing witnesses to the deed and also took the acknowledgment of appellee thereto, if he had brought the paper for her to sign, and he replied yes, and she signed it. She further testified that although she read only a few lines of the paper, she discovered that it was a deed. When she remarked to the said Hooton “this is not a will; it is a deed,” and he replied “Miss Laura, you had better let it remain this way, as there is so many technicalities in wills;” that at the time appellant “was sitting up in the window, but made no reply whatever;” that appellee took the paper out of the room to get a Mr. Porter to witness it, who, however, refused to do so because it was a deed instead of a will; that she made no reply to Mr. Porter because she already knew it was a deed, but returned to the room and told Mr. Hooton that Mr. Porter refused to sign it, whereupon appellant requested said Hooton to sign it, who did so; that she said she was willing for it to remain that way if it was not recorded. There is no testimony that appellant agreed not to record the deed. Appellee herself did not so testify, and the only other testimony in addition to that of appellee, that she made the statement above in regard to not putting the deed of record is that of J. H. Porter, who says he heard appellee so tell appellant, but appellee herself says Porter was not present in the room at the time she told appellant not to record the deed. Both the appellant and the said Hooton testified positively that no request was made by appellee of appellant to withhold the deed from record. The record discloses the fact that the deed from appellee to appellant was recorded on the 20th day of May, 1891, and Miss Mary Martin, one of the subscribing witnesses to said deed, testified that about nine or ten days after the deed was executed she was informed by Mrs. Clara Pinney that the deed had been recorded, and that she, Mary Martin, so informed appellee. Miss Clara Pinney testified that shortly after the deed was executed she was present at a conversation which took place between her mother and appellee, during which her mother informed appellee that the deed had been recorded at Milton, and appellee remarked she was glad it had been recorded at Milton instead of Pensacola. Miss Martin also testified that on the same day the deed was executed appellee told her that the deed to appellant covered the Garcon land. Eight different witnesses, S. C. Pinney, J. J. Hooton, Miss Mary Duncan, Irene M. Pinney, Lydia Pell, H. B. Pinney, Clara Pinney and Lavinia Scott, testified that at different times, running through a period of years, after the date of the execution of the deed, appellee had made admissions to them, against her interest, that she had given the land to appellant, and that it was in accord with her intentions. And yet not for nearly seven years after the deed had been recorded, and for more than one and a half years after appellant had sold it, did appellee bring suit against him. To say the least of it, this was gross laches, and sufficient to bar relief; unless satisfactorily explained, which has not been done. There is some conflict in the testimony, but mostly upon minor and immaterial points. Much of the testimony was also irrelevant, immaterial and in many respects open to objections. However, since the record does not affirmatively show that the objections to the admissibility or competency of any of this testimony, which is found in the record, were presented to the chancellor, and expressly ruled upon by him in the court below at or before the final hearing of the cause, we can not consider or allow same in this court. Skinner v. Campbell, 44 Fla. 723, 33 South. Rep. 526; Stockton v. The National Bank of Jacksonville, supra.

As we have already seen, the testimony does not support the allegations of the bill and signally fails to sustain the charge of fraud made against appellant. In so far as the testimony tends to show any acts of fraud upon the part of appellant other than those alleged in the bill that can not avail appellee. Howard v. Pensacola & A. R. Co., 24 Fla. 560, 5 South. Rep. 336; Tate v. Pensacola, Gulf, Land & Development Co., 37 Fla. 439, text 455, 20 South. Rep. 542; Parrish v. Pensacola & A. R. Co., 28 Fla. 251, 9 South. Rep. 696.

We are of the opinion that the effect of the sworn answer as evidence has not been overcome and that all the errors are well assigned. It therefore follows that the decree appealed from must be reversed and it is so ordered, with directions to dismiss the bill; the appellee to pay the costs of this appeal.