Parken v. Safford

Shackleford, J. (after stating the facts). — The filing of a replication by the complainant to the answers of the defendants thereby puts in issue all the matters alleged in the bill and not admitted by the answer, as well as those matters contained in the answer which are not responsive to the bill. See Pinney v. Pinney, 46 Fla. 559, 35 South. Rep. 95, and authorities therein cited. The answer of Margarita Safford, one of the defendants, contains the usual general denial found in answers in chancery. This is sufficient to, make an issue on material allegations in the bill not admitted in the answer, and to which no response is made. Such statements can not be taken as admitted to be true, but must be proved by complainant. Pinney v. Pinney, supra. While it thus becomes incumbent upon the complainant to prove all the material allegations in the bill, where the oath to the answers is waived, as was done by the complainant in her bill in the instant case, the answers so filed by defendants do not become evidence in their favor and are not required to be overcome by two witnesses, or one witness and corroborating circumstances. All that the complainant is required to do in such a case is to maintain the issue so made by a preponderance of the evidence. Kahn v. Weinlander, 39 Fla. 210, 22 South. Rep. 653. It must also be borne in mind that one of the defendants, Gladys Safford, was an infant, and, therefore, “It was the duty of a court of equity to see that the interests of minors are protected in suits before it, whether the claim or defense be properly pleaded or not, and for this purpose the chancellor should look to the record in all its parts, and of his own motion give to the minors the benefit of all objections and exceptions appearing thereon, as if specially pleaded.” Walker v. Redding, 40 Fla. 124, 23 South. Rep. 565, and authorities therein cited; Lucas v. Wade, 43 Fla. 419, 31 South. Rep. 231; 10 Ency. Pl. & Pr. [296] 589, 590, 679, 689 and numerous authorities there cited. See Pace v. Pace, 19 Fla. 438. The same rule obtains on appeal, and the appellate court will protect the rights of infants, although no objection or exception is taken, and even though there is no appeal on the part of the infant. 10 Ency. Pl. & Pr. 679, and authorities cited in notes. In order to authorize or warrant a decree in favor of complainant it was incumbent upon her to sustain by a preponderance of the evidence the allegation in her bill as to the execution of the two deeds in question. Unless this was done, she was not entitled to the relief sought or indeed to any relief. A careful reading of the evidence convinces us that the complainant signally failed to sustain this allegation. In fact, her own testimony, to say nothing of the testimony of other witnesses, or of the circumstances connected therewith, is sufficient to preclude her from obtaining the relief sought. We deem it unnecessary to recite the testimony. Suffice it to say that there was a lack of proof as to the execution of either deed in the presence of two witnesses. There was no sufficient showing that either deed was ever delivered to the grantee named therein or to any one for either of said grantees. That the delivery of a deed by the grantor, and its acceptance by the grantee, are essential to convey title, see Ellis v. Clark, 39 Fla. 714, 23 South. Rep. 410; Loubat v. Kipp, 9 Fla. 60; Hart v. Bostwick, 14 Fla. 162; 13 Cyc. 560. Also see Rev. Stats., 1892, section 1950, which was originally enacted in 1828. Having found that there was no execution of the deeds in .question, and hence that they were never operative or effective as deeds, it necessarily follows that both the decree of July 15th, 1901, as well as the decree of January 17th, 1903, were improperly rendered. This makes it unnecessary for us to consider the errors assigned by appellant or to express any opinion as to the errors and irregularities of which she complains. It is well settled in this court that “An appeal in [297] chancery opens the whole case for the consideration of the appellate court, and a cross-appeal is not essential to entitle an appellee to a reversal of a decree which contains errors prejudicial to his rights.” Neubet v. Massman, 37 Fla. 91, 19 South. Rep. 625, and authorities cited therein. See especially Foster v. Ambler, 24 Fla. 519, 5 South. Rep. 263. It follows from what has been said that the decree must be reversed, and it is so ordered, with directions to dismiss the bill, the costs of this appellate proceeding to be taxed against the appellant. Taylor, C. J., and Cockrell, Hocker and Whitfield, JJ., concur. Carter, J., absent.