LOTTIE E. MAHIN
v.
D. POWELL MAHIN
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The Florida Supreme Court held that a bill of complaint alleging a guardian breached his trust by conveying land to a third party was sufficient to withstand a motion to dismiss. The court affirmed the denial of a motion to transfer the case to the law side of the court.
Yes, the amended bill of complaint alleged sufficient grounds for equitable cognizance and stated a good cause of action that should withstand a motion to dismiss. The Circuit Court properly denied the motion to transfer the cause to the law side.
“the holding of the Court is that the controversy attempted to be presented by the amended bill of complaint is one of equitable cognizance and that the allegations of the bill of complaint involved are sufficient to withstand a motion to dismiss.”
Establishes the court's primary holding regarding the sufficiency of the bill of complaint.
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Join FLexlaw to unlock all legal intelligenceThe amended bill of complaint alleged that a guardian breached the trust reposed in him for the benefit of his minor son. The bill further alleged tha…
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On Petition for Rehearing.
The holding of the Court is that the controversy attempted to be presented by the amended bill of complaint is one of equitable cognizance and that the allegations of the bill of complaint involved are sufficient to withstand a motion to dismiss. Such is the import of the opinion in McCamy v. Bayne, 94 Fla. 209, 210, 113 Sou. *248Rep. 712 (receded from on rehearing on other points in 116 Sou. Rep. 267). This disposes also of the motion of appellant to transfer the cause' to the law side of the court, which motion the Circuit Court properly denied. If there are defenses to the bill such as laches, ratification, waiver, estoppel and the like, they may be advanced in due Course by answer. See: Link v. Friou, 116 Fla. 337, 156 Sou. Rep. 719. The amended bill specifically alleges that the guardian breached the trust reposed in him for the benefit of his minor son and shows that the third party (appellant) to whom was conveyed the land acquired by him as guardian, stands in such guardian’s shoes with reference.to it, if the allegations and intendments of the bill are true as alleged. Such a bill is a good bill and a motion to dismiss it should have been denied.
Rehearing denied.
Whitfield, C. J., and Ellis, Terrell, Brown, Buford and Davis, J. J., concur.
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Citator
Cited By
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Nolan v. Lunsford, 142 Fla. 671 (Fla. 1940)…t was without error in making and entering the order denying the motion of the defendant to dismiss. See Schmidt v. Kibben, 100 Fla. 1684, 132 So. 194; Miami Bond & Mortgage Co. v. Bell, 101 Fla. 1291, 133 So. 547; Burnett v. Dollison, 125 Fla. 254, 169 So. 665. The next question to be determined is whether or not the covenants, supra, appearing in the vendor’s sales agreement are dependent or independent. It is the contention of counsel for appellant that the covenants, supra, are dependent and it was no…
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Neva Richards v. Hasty, 158 Fla. 459 (Fla. 1947)…the cloud on the title resulting from the recordation thereof. On the contrary, several cases hold that a bill lies for this purpose, if the seller offers to do equity, as was offered in the case now before us. In Barnett v. Dollison, 125 Fla. 254, 169 So. 665, the Court said in part: “The original purchase and sale agreement having been recorded by the defendant, became and is a cloud on the complainant’s title, and while, as. heretofore pointed out, the amended bill is not sufficient as a basis for for…
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Huguley v. Hall, 141 So. 2d 595 (Fla. 1st DCA 1962)…Sloan, 25 Fla. 53, 5 So. 603. To support the per curiam order of af-firmance, my brethren cite Taylor v. Rawlins (1923), 86 Fla. 279, 97 So. 714, 35 A.L.R. 271; Ganaway v. Henderson (Fla.App.1958), 103 So. 2d 693; Barnett v. Dollison, 125 Fla. 254, 169 So. 665; and Herrera Y. Nogueira v. Helker et ux., Third District Court of Appeal, 139 So. 2d 895. I suggest that these cases are not in point. In Taylor the plaintiff vendors of real property, having repossessed themselves of the property pursuant to defe…1 / 2
Authorities Cited
- Atl. Bank & Tr. Co. v. Sengstak, 95 Fla. 606 (Fla. 1928)
- Link v. Friou, 116 Fla. 337 (Fla. 1934)
- McCamy v. Lucius L. Payne, 94 Fla. 209 (Fla. 1927)