T. V. CONWAY, J. BANKS KURTS, AND MAUDE M. BURKET,
v.
JOHN E. WILSON AND RUTH TURNER WILSON
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The Florida Supreme Court reversed a trial court's dismissal of a bill of complaint seeking to quiet title to land, holding that a plaintiff need not allege possession of the property to maintain such an action, contrary to the lower court's interpretation of prior precedent.
A bill of complaint in a suit to quiet title to land does not need to allege that the plaintiff is in possession of the property. Although the bill may be defective under applicable statutes and should be amended, it is sufficient to withstand a motion to dismiss.
“We do not think it necessary for a bill of complaint in a suit to quiet title to land to allege that the plaintiff is in possession of the property.”
The Court's direct holding on the central issue of whether possession must be alleged.
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Join FLexlaw to unlock all legal intelligencePlaintiffs T. V. Conway, J. Banks Kurts, and Maude M. Burket filed a bill of complaint to quiet title to land against defendants John E. Wilson and Ru…
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This cause is before the court on appeal from an order dismissing the bill of complaint on the theory that the bill of complaint -was insufficient in law in that it *405failed, among other things, to allege that the plaintiff was not in possession of the property described in the bill. The briefs here concede this to be the pivotal point of the case. We shall consider the case at bar as considered by the parties in the lower court.
We do not think it necessary for a bill of complaint in a suit to quiet title to land to allege that the plaintiff is in possession of the property. See Sections 5005, 5010 C. G. L.; McDaniel v. McElvy, 91 Fla. 770, text 794-5, 108 So. 820, 51 A. L. R. 731, where Mr. Justice Strum considered the question of possession in a suit to quiet title.
The court below no doubt sustained the motion to dismiss under Sawyer v. Gustason, 96 Fla. 6, 118 So. 57, and Zetterland v. Stratton, 93 Fla. 1118, 113 So. 562. In Sawyer v. Gustason, 96 Fla. text pages 9 and 10, which dealt with a case decided before Chapters 10,223 and 11,838, Acts of 1925,' were adopted, this Court said:
“The bill was evidently filed under Sec. 3213, Rev. Gen. Stats., which is derived from an Act of 1899. This Act made it possible for a party, whether in actual possession or not, claiming title to real estate, to bring suit to quiet such title against any person not in actual possession who claims an adverse interest or estate, legal or equitable, therein. But this statute did not attempt to change the old rule that a person claiming the legal title to land in the possession of another could not maintain a bill in equity against such person in possession to quiet the complainant’s title or remove as a cloud therefrom the claim of such party in possession. For in such case the complainant, having a claim of title, legal in its nature, and the defendant being in possession, had an adequate remedy at law by ejectment, and the defendant could not, ■ by proceedings in equity to quiet title or remove a cloud, be deprived of his right to trial by jury in ejectment proceedings at law. Patton v. *406Crumpler, 29 Fla. 573, 11 So. R. 225; Sloan v. Sloan, 25 Fla. 53, 5 So. R. 603; Gamble v. Hamilton, 31 Fla. 401, 12 So. R. 229; Graham v. Fla. L. & M. Co., 33 Fla. 356, 14 So. Rep. 796; Trustees v. Gleason, 39 Fla. 771, 23 So. R. 539; Briles v. Branford, 54 Fla. 501, 44 So. R. 937. Before this statute was adopted, the rule was that, in bills to quiet title or; remove clouds from title, it must have been shown that the complainant was in possession of the land, or that the land was wild and unoccupied. Watson v. Holliday, 37 Fla. 488, 19 So. R. 640; Simmons v. Carlton, 44 Fla. 719, 33 So. R. 408; Morgan v. Dunwoody, 66 Fla. 522, 63 So. R. 905 * * *”
While the bill of complaint is defective under Section 5005 C. G. L., and McDaniel v. McElvy, supra, it is sufficient to withstand the attacks of motion to dismiss, but should be amended.
See also Hawkins v. Rellim Inv. Co., 92 Fla. 784, 110 So. 350.
.The cause is reversed for further proceedings in the lower court not inconsistent with this opinion.
It is so ordered.
Ellis, C. J., and Whitfield, Terrell, Brown and Chapman, J. J., concur.
Buford, J., dissents.
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Battle v. Butler, 138 Fla. 392 (Fla. 1939)…7 A. S. R. 125, 4 L. R. A. 55; Dicken v. McKinley, 163 Ill. 318, 54 A. S. R. 471; Snyder v. French, 272 Ill. 43, 111 N. E. 489. An endless number of other authorities could be cited. The rule stated in Wilson v. Wilson, Administrator, 132 Fla. 518, 181 Sou. 385, that, “In suit for the specific performance of an alleged oral contract to devise realty in consideration of personal services rendered deceased, bill was properly dismissed in absence of allegations that deceased intentionally put plaintiff into a…
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McDowell v. Halsted L. Ritter, 153 Fla. 50 (Fla. 1943)…re was no agreement in writing to convey and that by the statute of frauds the agreement was void and cannot now be enforced. Butler v. Battle, 138 Fla. 392, 189 So. 846; Miller v. Carr, 137 Fla. 114, 188 So. 103; and Wilson v. Wilson, 132 Fla. 518, 181 So. 385; are relied on to support this contention. The law is settled that the statute of frauds applies only to executory contracts and has no application to agreements fully performed on both sides. Contracts, or agreements to devise property in a given…
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Palmer v. Greene, 159 Fla. 174 (Fla. 1947)…that it is not necessary for a plaintiff to allege in his bill of complaint in a suit to quiet title that the plaintiff is in possession of the property. McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 51 A. L. R. 731; Conway v. Wilson, 132 Fla. 404, 181 So. 385; Griffin v. Bolen, 149 Fla. 377, 5 So. (2nd) 690, in suits to quiet title the burden of proof rests on the plaintiff to show with clearness, accuracy and certainty not only validity of his own title but the invalidity or inferiority of the [*177] de…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Nannie McDaniel v. McElvy, 108 So. 820 (Fla. 1926)
- Sawyer v. Gustason, 96 Fla. 6 (Fla. 1928)
- Hawkins v. Rellim Inv. Co., 92 Fla. 784 (Fla. 1926)
- Sloan v. Sloan, 25 Fla. 53 (Fla. 1889)
- Mellie M. Morgan v. Dunwoody, 66 Fla. 522 (Fla. 1913)
- Graham v. The Fla. Land & Mortg. Co., 33 Fla. 356 (Fla. 1894)
- Trs. of the Internal Improvement Fund of Fla. v. Gleason, 39 Fla. 771 (Fla. 1897)
- Patton v. Crumpler, 29 Fla. 573 (Fla. 1892)
- Briles v. Bradford, 54 Fla. 501 (Fla. 1907)
- Gamble v. Hamilton, 31 Fla. 401 (Fla. 1893)