Terra Ceia Estates v. Taylor

Citations

• 68 Fla. 261
• 67 So. 169

Syllabus

<p>1. When a defendant in a suit in equity incorporates in his answer to the bill a general demurrer, whereby he attacks the equity of the bill, it is only at the final hearing of the cause that such demurrer can be insisted upon, though it should be called to the attention of the court at that time before the merits are gone into.</p> <p>2. Under the provisions of Rulé IS, Supreme Court Rules, adopted March 2, 1905, (page 11 of such rules prefixed to 51 Fla. 37 South. Rep. viii), no objection will be allowed to be taken in the appellate court to the admissibility of any evidence, oral or documentary, found in the record in a chancery cause, unless the record affirmatively shows that the objection thereto was presented to the chancellor, and expressly ruled upon by him in the court below, at or before the final hearing of the cause. Every matter, purporting to be evidence, found copied by the clerk into the record in such cause, will be presumed to have been used in evidence in the court below, unless the record affirmatively shows the contrary.</p> <p>3. While the findings and conclusions of a chancellor, where the testimony is not taken before him, but before a master or examiner, by reason whereof he is not afforded an opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous.</p> <p>4. While the statutory proceeding for partition may not be used as a substitute for the action of ejectment to try the title to lands, or used merely for the purpose of establishing rights or titles, yet where the dona fide object of a suit is the partition of lands between the common owners thereof, some of whom are complainants and the others are defendants, and some of the parties to the suit are in actual or constructive possession of the lands, then all controversies between the parties as to the legal title