Burton v. McMillan

Citations

• 52 Fla. 228

Syllabus

<p>An action of ejectment is brought by McMillan against tile Burtons — husband and wife — for the possession of a lot of land conveyed to McMillan by the Burtons, and mesne’profits. At the time of the conveyance to MeMillan the land was the separate property of Mrs. Burton. The Burtons pleaded not guilty, and special pleas setting up, among other things, that the sole consideration for the deed was the promise of McMillan not to prosecute B. H. Burton, the husband, or prevent his prosecution, for the crime of embezzlement. To these pleas the plaintiff, McMillan, filed a replication of res adjudicata, setting up that the facts alleged in the pleas had been adjudicated in favor of McMillan in a chancery suit brought by thp Burtons against McMillan to set' aside said deed of conveyance, and making the proceedings in the chancery suit a part of the replication. To this replication a demurrer was interposed by the Burtons on the ground in substance, among others,' that the replication did not show an adjudication of the defense set up in the pleas. This demurrer was overruled, and judgment entered for McMillan. In the chancery suit the bill of the Burtons was demurred to on two grounds, viz: First, that it was without equity, and, second, that it was multifarious. This demurrer was sustained by the judge and the bill dismissesd, but his order does not state upon what giound the demurrer was sustained. Held: In determining what was adjudicated in chancery suit, this court will assume that the judge, in deciding that case, did so upon the merits, without regard to whether his decision was correct, or otherwise; that he did not ignore the plain allegations of the bill, and when it was therein alleged, among other things, that the sole consideration for the deed was the promise of McMillan not to prosecute or to prevent the prosecution of B. H. Burton for the crime of embezzlement, cf which he was guilty; that the judge sustained the demurrer on the ground that the. parties