Law v. Taylor

Whitfield, C. J.

— A bill was filed by the appellees to quiet title to land and to enforce an accounting for tres: pass on the lands. The defendants appealed from orders overruling a demurrer to the bill and sustaining exceptions to the answer.

The bill alleges that the complainants, several being minors, are the owners of the land by virtue of being the *489 widow and heirs of Benjamin D. Mills, deceased, who on January 16, 1892, entered upon lands of the United States under the homestead laws and received a patent for the land May 22, 1899; that the defendants claim title under a tax deed issiied in 1905, based on a tax sale made in 1895, for unpaid taxes of 1894; that the tax deed is void because the land was not subject to taxes in 1894, and for other stated reasons; that said tax deed is a cloud upon complainants’ title; that the land is wild, unimproved and unoccupied, and not in the possession of any person whomsoever; that defendants have entered upon said land and cut therefrom pine timber of great value, and removed same from said land, and have also cut and boxed pine timber on said land for turpentine purposes and have removed from said land and from the trees growing thereon large quantities of pine gum to the damage of complainants. It is prayed that the tax deed and subsequent deeds under which the defendants claim be cancelled and that an accounting and payment for pine timber and pine gum taken from the land be decreed.

A demurrer which asserts that there is no equity in the bill; that the bill is multifarious; that the remedy at law is inadequate, and that the bill is contradictory and is vague and indefinite in not stating when the defendants committed the alleged trespass upon the land, was overruled. In their answer the defendants assert the validity of their paper title based on the tax deed and their rights thereunder, and “deny that the lands are wild, unimproved and uncultivated and not in the possession of any person whomsoever, but allege and so charge that at the commencement of this suit, that said lands were in the possession of R. A. Paxson, who held the same as agent and lessee of defendant, W. E. Law, and that he is now *490 in the possession of the same, working the same for turpentine purposes;” “deny that said lands are wild, unimproved and not in the possession of any person whomsoever, but allege and so charge that the said lands are now and have been in the actual, open, adverse, notorious and continuous possession of the' defendants, their agents, lessees and assignors for more than seven years last past;” defendants aver “that by reason of the tax deed to J. L. Wells and transfers from J. L. Wells, that legal title now vests in defendant W. E. Law, and by reason of said title based upon said tax deed, and by virtue of the possession of said lands for more than seven years last past, said possession being actual, open, adverse, notorious and continuous, by the defendants, their assignors and agents.”

The portions of the answer quoted above were excepted to as being impertinent, and the exceptions were sustained.

As the complainants allege legal title in themselves and that the “land is wild, unimproved and unoccupied, and not in the possession of any person whomsoever,” and 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 from said land” the pine gum, do not contradict the other allegations and do not show possession of the land by the defendants at the institution of the suit. If the relief by accounting is barred by laches, it may. be shown as a defense. If the *491 complainants have a right to maintain a suit to quiet title to land'as against the defendants, allegations seeking an accounting, from the defendants for trespasses upon the land, do not render the bill of complaint multifaripus. Murrell v. Peterson, 57 Fla. 480 , 49 South. Rep. 31 ; Arcadia Mercantile Co. v. Branning, 59 Fla. 428 , 52 South. Rep. 588 . The demurrer to the bill of complaint was properly overruled.

An exception for impertinence must be supported in toto, and will fail if it covers any part of the answer which is relevant and material. Bush, Trustee, v. Adams, Adm’r., 22 Fla. 177 ; Robertson v. Dunne, 45 Fla. 553 , 33 South. Rep. 530 ; Holzendorf v. Terrell, 52 Fla. 525 , 42 South. Rep. 584 ; Trustees v. Root, decided this term, 58 South. Rep. 371 .

The portions of the answer denying that the land is wild and is not in the possession of any one, and averring that the defendants were in possession of the land at the institution of the suit are material and pertinent to the question,of equitable cognizance, and should not have been stricken for impertinence.

The order overruling the demurrer to the bill of complaint is affirmed, and the order sustaining exceptions to the answer is reversed.

Taylor, Shackleford, Cockrell and Hocker, J. J., concur.