Stackpole v. Hancock , 40 Fla. 362 ( 1898 )

Per Curiam :

Both complainants and defendants entered appeals in this case, and separate transcripts of the record have been filed on the appeals. No objection is urged to any of the appellate proceedings in this court, nor is any objection made to the procedure in the Circuit Court, except a suggestion in brief of counsel for Hancock and others that the record fails to show a disposition of the plea filed by George T. Ross and set down for argument. Ross was made a party to the bill but no reliefwas, specially prayed against him, nor does the decree appealed from expressly adjudicate anything as to his rights. After the filing of a plea by him, setting up an interest as mortgagee in the undivided interest of the defendant John M. Taylor, it was set down for argument, and there is no showing that any hearing was had thereon. The record does show that the parties went into proof on the matter of the plea and that the case was brought on for final hearing without any objection as to the condition of the pleadings. Ross, though joining in the appeal, has filed no assignment of errors here, nor is there any error assigned by any appellant on the condition of the record as to said plea.

Where the parties, after a plea is filed and set down, fail to bring it on for hearing, and proceed to take testimony as to the matters of the plea, and further bring the case on for hearing, this court, in accordanee with the principle announced in Crump v. Perkins, 18 Fla. 353, should not reverse tlie decree unless thefe is error on the merits.

Both of the appeals in the present case are presented together, and in view of the rule that an appeal in chancery opens up the entire case for appellees as well as appellants, the case will be disposed of on its merits, so far as disclosed by the record, without reference to the strict requirements as to assigning and considering errors in the appellate court. The bill of complaint has a double object: It seeks the cancellation of certain quit-claim deeds from complainants to defendant Hancock, and a similar deed from the latter to the other original defendants, and also certain tax titles acquired by all óf said defendants. In reference to the quitclaim deeds, the testimony discloses three separate transactions in the purchase of the land by Hancock from complainants. On and prior to June, 1890, the land in question was jointly owned by W. P. Stackpole and John L. Coniior, and about the 2nd day of that month Hancock purchased the interest of Stackpole in the land. Connor died, and about the 26th of September, 1890, three of his heirs, James, Eugene and Rosanna Connor, deeded their interest in the land to Hancock. The purchase by Hancock from the parties named was made by him in person in the State of Connecticut, where they resided. In Deceriiber. of the same year Hancock purchased through one J. T. Lynch the interest of W. J. Connor, the only other heir at law of John L. Connor, deceased. Stackpole and John L. Connor, deceased, purchased the land in 1882, and for a short timé resided upon it, but soon left the State and never again returned. Phosphate had not beén discovered in Florida whén théy were here, and no interest in Florida binds hád arisen oil account of phosphate. This discovery had been made a short time before Hancock purchased from Stackpole, and the latter knew nothing of it when he sold his interest. Hancock had long resided in Florida and near the land, and it is abundantly shown that he knew of a valuable deposit of phosphate on the land before he went to Connecticut to purchase. The proof shows without contradiction that he visited the land before he started to go to Connecticut, and saw a pit dug into the rock on the land that disclosed what was stated to him to be phosphate. At that time there was great excitement in the country over the discovery of phosphate, and its supposed great value. Hancock did not disclose to Stackpole the fact that phosphate had been discovered on the land. The testimony tends to show that Hancock represented, in making the purchase, that he wanted the land to add to land of his own in order to complete a body of timbered land that he expected to sell to an English syndicate, and that the land was valuable only for the timber that was on it. He also stated that the land had been sold for taxes, and that a tax deed had been issued, and this statement was true. There was some testimony tending to show that Hancock had induced Stackpole to drink freely at the time of the purchase, but it did not go to the extent of showing incapacity on his part to make a contract of sale. The testimony is of a character to warrant the chancellor’s conclusion, and to forbid a disturbance of it, that Hancock represented to Stackpole, as an inducement for him to sell, that the land was valuable only for the timber that was on. it, and also that the special reason of the former in-desiring to buy it was to augment a body of his own land that was necessary to complete a sale to an English syndicate. It has been decided in this State, in accordance with the prevailing rule, that statements amounting to an estimate or opinion of the value, condition, character or adaptability to certain uses of real estate are not actionable unless the party resorts to some fraudulent means to prevent an examination of the property. Williams v. McFadden, 23 Fla. 143, 1 South. Rep. 618; West Fla. Land Co. v. Studebaker, 37 Fla. 28, 19 South. Rep. 176. In proceedings in chancery to cancel a deed to real estate on the ground of fraud, the mere expression of an opinion as to value, or a statement as to the uses for which the land is wanted, will not ordinarily suffice. A fraud may, however, under some circumstances be perpetrated by a suppressio veri as well as a suggestio falsi. According to the rule of the common law a vendee who has information of a mine on the land of another of which he is ignorant is under no legal obligation to disclose such fact in making a purchase. Under such circumstances the vendee may remain silent as to the real facts and purchase, but such situation places him under legal obligation to do no act, or make any representation calculated to mislead the owner into the belief that there was no mine on the land. If the vendee undertakes to speak under such circumstances, he must utter the truth. The principle stated in the English case of Turner v. Harvey, 1 Jacob, 169, is that the purchaser is not bound to give the vendor information as to the value of the property, but a very little is sufficient to affect the application of this principle. This doctrine is illustrated by fhe case of Livingston v. Peru Iron Co., 2 Paige, 390, where the vendee, knowing the existence of a valuable spring on the land, represented that the land was of no value except as a sheep pasture, for which purpose it was wanted. The authorities sustain the view that while a purchaser, situated as Hancock was, is not bound to disclose facts in his knowledge, or to answer inquiries as to such facts, yet if he undertakes to do so, he must disclose the whole truth, without concealment of material facts, and without doing anything calculated to prevent an investigation on the part of the seller, especially if he does not reside near the land, and the purchaser does. Caples v. Steele, 7 Oregon, 491; Walters v. Morgan, 3 De G. F. & J. 718; Dolman v. Nokes, 22 Beavan, 402; Smith v. Countryman, 30 N. Y. 655; Smith v. Beatty, 2 Iredell’s Eq. 456, S. C. 40 Am. Dec. 435; Harris v. Tyson, 24 Penn. St. 347, S. C. 64 Am. Dec. 661; Kohl v. Lindley, 39 Ill. 195, S. C. 89 Am. Dec. 294; Swimm v. Bush, 23 Mich. 99; Morgan v. Dinges, 23 Neb. 271, 36 N. W. Rep. 544; Bowman v. Bates, 2 Bibb, 47, S. C. 4 Am. Dec. 677; Laidlaw v. Organ, 2 Wheaton, 178; 2 Pomeroy’s Eq. Jur., §902 and note. The statement made by Hancock, that the land was valuable only for the timber that,was on it, would ordinarily be regarded as an expression of an opinion, but under all the circumstances of this transaction, as disclosed by the testimony, it was calculated to mislead Stackpole, and to prevent him from making any inquiry in reference to the land, and constituted a part of the scheme to conceal the real facts as to the discovery of phosphate on the land, and which, if known to Stack-pole, would have prevented the sale at the price accepted. The conclusion reached by the chancellor, that the sale by Stackpole to Hancock, so far is he is concerned, is sustained by testimony of such a character as to preclude, under the established rule on the subject, a reversal. The decree, however, goes further and cancels the deed from Hancock to Hale, Taylor and Keathley as to Stackpole’s interest in the land. The bill alleges that Hancock, Hale, Taylor and Keathley conspired and confederated together to buy the land, and that Hancock was deputed as agent to go and make the purchase. The case made by the bill as to Hale, Taylor and Keathley is that they originally united with Hancock and participated with him in the entire purchase, and upon this case relief must be had if at all. Under the allegations of the bill, the decree against all the defendants as to Stackpole’s interest would be correct on proof of the fraudulent representations of Hancock if he in fact was acting for the other defendants, though they did not authorize such representations and did not know of them when the deed from Hancock was executed to them. But the proof does not show such a state of facts. It is established beyond question that Hale, Taylor and Keathley never saw any of the complainants at the time of the purchase of the land, and did not make any representations of any kind to them. It is also clearly shown by the testimony that they did not have any agreement or understanding with Hancock in reference to the purchase of the land at the time the deed from Stackpole' was obtained. They subsequently obtained a deed from Hancock for valuable consideration, and there is no basis in the testimony for a conclusion that they had any information of the representations made by Hancock when he purchased the property.

Counsel for Stackpole have assumed that the combination of the defendants and agency of Hancock to purchase the land is established by the pleadings, and required no proof. In this they are mistaken. Hancock filed a separate answer and therein admitted the allegation of agency, but his answer cannot be used against the other defendants in the absence of proof that he occupied such a relation to them as to bind them by his representations. The defendants, other than Hancock, deny positively that they authorized Hancock to make any of the fraudulent representations alleged, and upon information they deny that any such representations were made. They do not, however, directly respond to the allegation that they agreed with Hancock to buy the land and authorized him to make the purchase from the complainants; and it is assumed that by their failure to make such response the allegation of the bill is admitted to be true. It will be seen from the statement that the answer of said defendants concludes with the usual general denial found in answers in chancery, and this is sufficient to make an issue on material allegations not admitted, and to which no direct response is made. There is no statute in Florida regulating the effect of answers in chancery in this respect, and the general rule prevails, that where there is not direct response to a material statement in the bill, no exceptions filed and the case is brought to hearing on the replication to the answer, such statement can not be taken as admitted, but must be proved. It need not be proved by the amount of testimony required to overcome a sworn responsive answer, but it must be shown by at least a preponderance of evidence. I Ency. of Pl. & Pr., p. 930, b, and authorities cited; Smith v. St. Louis Mutual Life Insurance Company, 2 Tenn. Ch. 599.

The testimony in this case is clear and positive that defendants Hale, Taylor and Keathley had no connection whatever with Hancock in the purchase of the land when Stackpole sold his interest, and on the proof, under the state of the pleadings, the chancellor should not have decreed against said defendants as to the interest acquired by them in the half interest of W. P. Stackpole. The complainants completely failed to establish the case made against said defendants as to said interest, and the latter were not compelled to specially set up the defense,of a bona fide purchaser without notice, but could meet the particular case made against them in the bill and thereby defeat a recovery.

As to the purchase from James, Eugene and Rosanna Connor, the case is different. When this purchase was made, Hancock is shown to- have acted for and represented the other defendants. It is true that there is no testimony tending to show that defendants Hale, Taylor and Keathley authorized any false representations, or knowingly ratified any, but it is true that Hancock was then acting for them, and they must be bound by his acts and doings. Cofer v. Moore, 87 Ala. 705, 6 South. Rep. 306. The decided weight of the testimony shows that Hancock represented to James, Eugene and Rosanna Connor at the time he purchased from them that the land did not contain phosphate. All three of them testify that in response to a direct question as to whether there was any phosphate on the land, Hancock stated there was none. It also .appears from the testimony of two other witnesses, not connected with the litigation, that Hancock stated to them in Willimantic, Connecticut, where the purchase was made, that no phosphate existed on the land. One of the witnesses had advised the Connors not to sell, and Hancock obtained an interview with him for the purpose of convincing him that his advice was wrong, and to get him to advise the Connors differently. It is true that the witness mentioned had been informed that Hancock held a tax title to the land, and on 'this information he advised the Connors not to sell. Hancock then held two tax titles to the land, andit appears that he impressed the witness with the idea that the land might be lost to the owners on account of the tax titles. But the witness states that before consenting to advise the Connors to sell under the showing of tax titles he asked Hancock about the phosphate on the land, and was assured by him in the most positive manner that none existed. After this the witness advised the Connors to sell. The other witness was foreman of a mill where some of the Connors worked', and, meeting with some difficulty in engaging the Connors in a negotiation of sale, Hancock approached the foreman and procured him to arrange an interview with the Connors. Plan-cock stated to the witness his object in seeing the Connors, and the witness says Hancock offered to pay him fifty dollars gratuitously if the trade was consummated. In the conversation on the subject the witness says Hancock stated that there was no foundation for any report that phosphate existed on the land. There was some conflict in the evidence, and Plancock denied all the statements imputed to him in reference to false statements about the land, but a careful consideration of the entire testimony makes it clear that the decided weight of it is in favor of the charge that a false statement was made to the three Connors in reference to the existence of phosphate on the land. The full extent of the phosphate existing is not definitely shown, nor is the full value of the land made to appear, but it is sufficiently established that a valuable mine of phosphate existed on the land which greatly enhanced its value.

It may be that the decree against the Connors was influenced by the view that they were induced to sell solely on account of tax titles which Hancock held. Counsel take this position here. It does appear that Plancock exhibited two tax titles at the time of purchase and brought their existence prominently to view in all the negotiations, but in connection with the tax titles and as an additional inducement to bring about the sale the representation was made that the land had no phosphate on it. It was made to owners who had never seen the land, and who resided in a distant State, and under such circumstances as authorized them to rely upon it as being true. It was material, and when Hancock undertook to speak in reference to the matter he should have disclosed the entire facts. Complainants testify that they relied upon the statement that there was no phosphate on the land-as being true, and it cannot be safely affirmed on the evidence that it did not operate to some extent in inducing the sale. It so, complainants can avail themselves of it in having a cancellation of the sale. The decree is erroneous as to James, Eugene and Rosanna Connor, but as to W. J. Connor it must be affirmed on the ground of an entire absence of proof showing any improper representations whatever made to him in obtaining the conveyance of his interest in the land.

There is some contention that complainants were barred by laches in not earlier instituting proceedings to cancel theisales. No such defens.e was made in the answers, but conceding that it may be insisted on without specially pleading it, the record here affords no sufficient support for the contention.

The amended bill seeks the cancellation of two tax deeds which defendants sought to interpose as evidence of a superior title in themselves. One of the deeds is based upon an assessment of the land in question for the year 1888, and this is tfie only one that demands any consideration, as the other does not embrace the land, and can, therefore, have no bearing on the case. The land in question is the W 1-2 of S. W. 1-4 of section 12, township 22 S., range 20 east, and the deed put in evidence, based upon the assessment of 1889, describes the larid as the W. 1-2 of N. W. 1-4 of section 12, township 22, range 20 east, which is an entirely distinct parcel of land from that owned and sold by the complainants.

Complainants put in evidence page 48 of the assessment roll of Hernando county for the year 1888, showing an assessment of'the. land for that year as the property of W. L. Connor. Proof was then made by the clerk of the Circuit Court that the tax returns, after the completion of the assessment rolls, were deposited in his office, and he was the custodian of them, and that upon an examination of the returns for the year 1888 he found one for the land in controversy. The return was produced in evidence and showed a proper description of the land listed to J. L. Connor. The witness further stated that from his knowledge of his handwriting he would say the return was m the handwriting of the tax assessor for the year 1888. It was shown that W. P. Stackpole and John L. Connor were the owners of the land during the year 1888, and no one was in the actual occupancy of it. The assessment in question was made under the act of 1887, Chapter 3681, the twenty-second section of which reads as follows: “The assessor shall ascertain by personal inspection, when not already sufficiently acquainted therewith, the value of the lands and assess them at their full cash value, and set down in the assessment rolls following and opposite the description of the lands, the name of the owner, or person in whose name the return is made; and when land has not been returned, the assessor shall enter the word "unknown’ in the column of the assessment roll ■ provided for the name of owners or person making return. A failure to give the name of the owner or person making the return; shall not invalidate the assessment. When the owner or person making the return of any real estate- is dissatisfied with the valuation fixed thereon by the assessor, and shall make complaint thereof to him, the same shall be so noted and reported by the assessor to the County Commissioners, to be reviewed and equalized by them.” This act prescribed the form of tax deed and made it prima facie evidence of the regularity of the proceedings from the valuation of the land by the assessor to the date of the deed inclusive. The validity of the act in reference to the evidentiary force of the deed has been affirmed in this State. Sams v. King, 18 Fla. 557; Florida Savings Bank v. Brittian, 20 Fla. 507; Mundee v. Freeman, 23 Fla. 529, 3 South. Rep. 153. In Sams v. King it is said, that the presumption of regularity which attaches to a ta.x deed must prevail in its favor until evidence is given of facts which show irregularity. It is not enough to prove facts from 'which irregularity may be inferred. The presumption must prevail until facts inconsistent with it are shown. The evidence introduced by the complainants was sufficient to prove, in the absence of a counter showing, that the land was returned to the assessor for the year 1888 in the name of J. L. Connor, who was an owner to the extent of an undivided half interest, and that the assessor undertook to base his action in assessing the property upon this return. It was his duty to make the assessment to the owner or person making the return, but this was not done. The assessment was to a person not the owner, nor to one making the return, and in this respect it was clearly in violation of the statute. , To what extent the clause in the section quoted, that a failure to give the name of the owner or person making the return shall no.t invalidate the assessment, was intended to cure defective assessments, is not entirely clear, but it applies only to the failure to give the name of the owner or person making the return, and not to the case where an entirely improper and unauthorized name is given. Giving the statute the strict construction which is applied to such legislation, the assessment was void, and consequently the deed based upon it was overthrown. The decree, so far as this tax deed is„ concerned, was correct.

It appears that the decree made no provision for a refunding of the purchase money and interest by the succeeding complainant, W. P. Stackpole. The cancellation should be conditioned upon the refunding of the proper amount of purchase money and interest by those of the complainants in whose favor the decree is made.

The decree, so far as W. J. Connor is concerned, is affirmed; and in all other respects it is reversed with directions to enter a decree in accordance with the views expressed.