DAVID R. CLEM, APPELLANT,
v.
FRANK R. MESEROLE, HARRY L. RICE, ARTHUR F. ODLIN AND CARRIE B. LINDSEY, APPELLEES
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In this equity case, the Florida Supreme Court affirmed dismissal of a bill seeking to remove clouds on title to real estate, holding that a complainant with legal title to improved land must allege possession or the unimproved character of the property to maintain such an action in equity.
A complainant with legal title to real estate must allege possession of the premises or that the land is wild, unimproved, and unoccupied in order to maintain a suit in equity to remove a cloud from the title; failure to make such allegations renders the bill subject to demurrer for want of equity.
“where the complainant's title to real estate is a legal one, he must be in possession of the premlses in order to maintain a suit in equity to remove a cloud from such title, un less the land is wild, unimproved and SO' unoccupied as not to destroy the constructive posses sien that follows the legal, title”
Establishes the primary rule that legal title alone is insufficient; possession or unimproved land status is required for equity jurisdiction
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Join FLexlaw to unlock all legal intelligenceAppellant Clem alleged ownership of legal title to real estate in Orange County and sought to have a judgment, sheriff's sale, deed, subsequent convey…
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Peje Curiam.
TMi® cause; being reached in its regular order on the •docket was referred by the court to its commissioners for investigation, who report the same recommending affirmance. . y
Upon due consideration the court finds that the original and amended bills in the case alleged the complainant, appellant, to be the owner of the legal title to certain real •estate in Orange county, and that a certain judgment, •sheriff’s sale and deed thereunder of said premises, and certain subsequent conveyances thereof by the purchaser at t ssuch sheriff’ sale and certain subsequent mortgages thereof were illegal, null and void, and prayed that the same might be so declared .and canceled of record. The bill is essentially one • by the alleged owner of the legal title to real estate seeking the removal of alleged clouds upon such title, but the bill omits to allege whether the complainant therein was in possession of the lands at the time of the filing of Ms 5ill, though it does allege that he had been in possession thereof about three years previously thereto, and it shows that some of it, at least, was improved with dwelling-houses and orange groves. The bill as amended was demurred to on the ground of a want of equity. This demurrer was sustained and the bill dismissed, from which decree the appeal is taken.
It has been settled here by a long line of decisions that where the complainant’s title to real estate is a legal one, he must be in possession of the premlises in order to maintain a suit in equity to remove a cloud from such title, un less the land is wild, unimproved and SO' unoccupied as not to destroy the constructive posses sien that follows the legal, title, and the hill must allege such possession or such unoccupied condition of the land, else it will be subject to demurrer for want of equity. Cavedo v. Billings, 16 Fla. 261; Conant v. Buesing, 23 Fla. 559, 2 South. Rep. 882; Sloan v. Sloan, 25 Fla. 53, 5 South. Rep. 603; Haworth v. Norris, 28 Fla. 763, 10 South. Rep. 18; Patton v. Crumpler, 29 Fla. 573, 11 South. Rep. 225; Gamble v. Hamilton, 31 Fla. 401, 12 South. Rep. 229; Graham v. Fla. Land & Mort. Co., 33 Fla. 356, 14 South. Rep. 796; Winn v. Strickland, 34 Fla. 610, 16 South. Rep. 606; Woodford v. Alexander, 35 Fla. 333, 17 South. Rep. 658; Levy v. Ladd, 35 Fla. 391, 17 South. Rep. 635; Brown v. Solary, 37 Fla. 102, 19 South. Rep. 161; Watson v. Holliday, 37 Fla. 488, 19 South. Rep. 640; Richards v. Morris, 39 Fla. 205, 22 South. Rep.
650. There was, therefore', no error in sustaining the demurrer to the bill. It is, therefore, hereby considered, ordered and adjudged that the decree of the court below appealed from in said cause be and the 'same is hereby, affirmed, at the cost of the appellant, but without prejudice to his right to file another bill as he may be advised, if in position to allege posses^ sion in himself of the premises involved.
Cases With Similar Vibessemantic neighbors from the corpus
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Johnson C. Tibbetts v. Atwell Olson, 91 Fla. 824 (Fla. 1926)…within the State of Florida and whose place of residence in this State is known. • To remove clouds upon title and to quiet title, to real estate is a proper subject of Equity Jurisdiction. Sloan v. Sloan, 25 Fla. 53, 5 So. 603; Clem v. Merserola, 44 Fla. 191, 32 So. 783, Hughey v. Winborne, 44 Fla. 601, 33 So. 249, Brecht v. Bur Ne Company — Fla.—Opinion •filed this term. Statutes may authorize the service of process by publication but to effect such service the statutes must be strictly complied with.…
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Mellie M. Morgan v. Dunwoody, 66 Fla. 522 (Fla. 1913)…e, he must be in possession in order to maintain a suit in equity to remove a cloud from such title, unless the land is wild, unimproved and so unoccupied as not to destroy the constructive possession that follows the legal title. Clem v. Messerole, 44 Fla. 191, 32 South. Rep. 783; Levy v. Ladd, 35 Fla. 391, 17 South. Rep. 635; Graham v. Florida Land & Mortg. Co., 33 Fla. 356, 14 South. Rep. 796. A deed of conveyance from the Trustees of the Internal Improvement Fund is prima facie evidence of title in th…
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W. E. Law & E. S. Mixson v. Taylor, 63 Fla. 487 (Fla. 1912)…allege the illegality of the defendants’ title, the complainants’ right to maintain the suit to quiet the title is prima facie apparent West Coast L. Co. v. Griffen, 54 Fla. 621, 45 South, Rep. 514, Simmons v. Carlton, 44 Fla. 719; Clem v. Meserole, 44 Fla. 191. The allegations that the defendants “have entered upon said land and cut therefrom pine timber ........................ and removed same from said land, and have also cut and boxed pine timber on said land for turpentine purposes and have removed f…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Sloan v. Sloan, 25 Fla. 53 (Fla. 1889)
- Brown v. Antonio Solary et ux., 37 Fla. 102 (Fla. 1896)
- Alphonso Haworth v. Norris, 28 Fla. 763 (Fla. 1891)
- Graham v. The Fla. Land & Mortg. Co., 33 Fla. 356 (Fla. 1894)
- Levy v. Ladd, 35 Fla. 391 (Fla. 1895)
- Patton v. Crumpler, 29 Fla. 573 (Fla. 1892)
- Winn v. Gillum B. Strickland, 34 Fla. 610 (Fla. 1894)
- Gamble v. Hamilton, 31 Fla. 401 (Fla. 1893)
- Woodford v. Seigmore Alexander, 35 Fla. 333 (Fla. 1895)
- Cavedo v. Liberty Billings, 16 Fla. 261 (Fla. 1877)