JAMES A. PREST, BING WOLSON AND MARK VAN BUSKIRK, APPELLANTS,
v.
GEORGE W. HAMMOCK ANE L. M. RUBLES, APPELLEES
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Appellants sued to enforce an alleged trust agreement regarding land purchased through appellee Hammock, who held title in trust. The court reversed a trial court's dismissal via demurrer, holding that the bill alleged sufficient facts to survive the demurrer and proceed to trial.
The court held that although the bill's allegations were not perfectly definite and concise, they alleged sufficient facts to place the bill beyond the reach of a general demurrer and that equity existed in the averments. The demurrer should have been overruled.
“While the allegations of the Bill of Complaint are not as definite and concise in regard to all matters as they might be it is our opinion that the bill alleges sufficient facts to place it beyond the reach of a general demurrer.”
Establishes the court's standard for surviving demurrer—allegations need not be perfectly precise but must allege sufficient facts establishing equity.
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Join FLexlaw to unlock all legal intelligenceAppellants entered into an agreement with appellee Hammock whereby they and others purchased certain lands, with each appellant holding a one-sixteent…
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Buford, J.
The appellants filed a bill against tbe appellees alleging that the appellants had entered into an agreement with the appellee, George W. Hammock, by which they and other persons purchased certain lands described in the Bill of Complaint; that the interest of each of the appellants in the said land was a one-sixteenth (1/16) undivided interest; that the title to the land was taken in the name of the appellee Hammock in trust for himself and the other purchasers named. It is alleged that it was agreed between all parties owning an interest in the land and the said Hammock that the land should not be sold except by and with the consent of all the purchasers. That thereafter Hammock entered into an agreement with Rubles to sell and convey the land to Rubles in violation of his agreement with his aestms que trust and that such agreement was made without the payment by Rubles of any consideration; that Rubles was not a purchaser for value without notice in that Rubles had paid nothing of value for the agreement received from Hammock. The Bill further alleged that the appellants were entitled to a deed of conveyance from Hammock conveying' to each of them their undivided one-sixteenth (1/16) interest in the property. The prayer was for an injunction against conveyance from Hammock to Rubles; that the agreement for such conveyance be declared null and void and that Hammock be required to convey to each of the appellants an undivided 1/6 interest in and to the lands. To the bill Hammock filed an answer admitting all the material allegations in the bill and prayed for affirmative relief against Rubles.
Rubles filed a general demurrer to the bill and embraced in the demurrer a motion to strike the answer of Hammock. Upon hearing order was made sustaining the demurrer and from this order appeal was taken.
While the allegations of the Bill of Complaint are not as definite and concise in regard to all matters as they might be it is our opinion that the bill alleges sufficient facts to place it beyond the reach of a general demurrer. The demurrer is addressed to the entire bill and as there is equity in the averments of the bill the demurrer should have been overruled. See Warren v. Warren, 66 Fla. 128; 63 Sou. 726; Craft v. Craft, 74 Fla., 262; 76 Sou. 712; Mountein v. King 75 Fla. 12; 77 Sou. 630; Downing v. Carlton 76 Fla. 490; 80 Sou. 57. The order sustaining the demurrer should be and the same is now reversed.
'Whitfield, P. J., and Terrell, J., concur. Brown, C. J., and Ellis and Strum, J. J., concur in the opinion.
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Citator
Cited By
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Fekany v. Fekany, 118 Fla. 698 (Fla. 1935)…is a general demurrer for want of equity a ground of demurrer for multifariousness may not avail if there is equity in the bill. Mountain v. King, 75 Fla. 12, 77 So. 630; Warren v. Warren, 66 Fla. 138, 63 So. 726; Prest, et al., v. Hammock, et al., 92 Fla. 941, 111 So. 112. In the case at bar the bill contains equity. The assault on it was by general demurrer. It was therefore unavailing. In Milton v. City of Marianna, 107 Fla. 251, 144 So. 400, we held that where two or more controversies between the sa…
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The Century Tr. Co. of Baltimore v. The Allison Realty Co., 105 Fla. 456 (Fla. 1932)…la. 138, 63 So. 726; Prince vs. Mahin, 73 Fla. 525, 74 So. 696; Downing vs. Carlton, 76 Fla. 490, 80 So. 57. See also Leavine vs. B. A. I. Ass’n., 88 Fla. 553, 102 So. 768; Reinschmidt vs. L. & N. R. Co., 90 Fla. 334, 106 So. 126; Prest vs. Hammock, 92 Fla. 941, 111 So. 112; Oakland Properties Corp. vs. Hogan, 96 Fla. 52, 118 So. 850; Dittmar vs. Woods-Hoskins-Young Co., 98 Fla. 513; 123 So. 919; Clapp vs. Coral Gables Corporation, 98 Fla. 1230, 125 So. 369; Stokes vs. Victory Land Co., 99 Fla. 795, 128 So…
Authorities Cited
- Warren v. Warren, 66 Fla. 138 (Fla. 1913)
- Craft v. Craft, 74 Fla. 262 (Fla. 1917)
- Charleb S. Mountein v. Birdie E. King, 75 Fla. 12 (Fla. 1918)
- Downing v. Carlton, 76 Fla. 490 (Fla. 1918)