Opinion
July 31, 1951. Rehearing Denied August 31, 1951.
Appeal from the Circuit Court, Dade County, Marshall C. Wiseheart, J.
Frank B. Dowling, Miami, for appellants.
Loftin, Anderson, Scott, McCarthy Preston, Miami, for Margaret Taylor, George T. Clark, Miami, for First Nat. Bank of Miami.
Robert M. Deehl, Miami, for Ethel T. Cory and H.O. Cory.
George W. Taylor, joined by his wife, Hattie G. Taylor, brought his bill of complaint against his daughter, Ethel E. Cory and husband, H.O. Cory, and Margaret Taylor, widow and devisee of Ross E. Taylor, his deceased son, to set aside and cancel two warranty deeds executed by him and his wife, Hattie G. Taylor, one of which conveyed certain of his interests in the land to Ethel E. Cory, and the other conveying certain of his interests in the same tract to Ross E. Taylor. Briefly, he alleges that these conveyances were executed August 7, 1945 without consideration and at the joint and several requests of Ethel E. Cory and Ross E. Taylor and charges that they were procured from him upon their false and fraudulent representations that his interests would in no wise be affected or changed by their execution and were requested of him solely as an accommodation to enable the son and daughter to effectively carry out their plan to revise an existing division of the land between themselves which theretofore had been made. It is alleged that in making these conveyances he relied on these representations and imposed full trust and confidence in the son and daughter in respect thereto. The defendant, Margaret Taylor, was not present when the deeds were executed or on other occasions when the representations were alleged to have been made by Ross E. Taylor or Ethel E. Cory.
To this bill, in substance, Margaret Taylor answered and denied that any such representations as charged in the bill were made by Ross E. Taylor and avers that the deeds are good and valid conveyances of plaintiff's interests in the land and that she owns the fee simple title thereto. There are further averments touching her right or claim to improvements made by her and Ross E. Taylor after the conveyances were made which are not necessary to consider on this appeal.
The defendant, Ethel E. Cory, answered admitting in large part the allegations of the bill and offered to re-convey the interests she received to the plaintiff and do equity as the Court might decree. There are other pleadings unnecessary to mention here.
At the trial of the cause before the Chancellor the plaintiff offered to prove by witness, W.E. Casper,
"That if W.E. Casper were allowed to testify in this cause that he would testify that prior to August, 1945, on more than one occasion, Ross E. Taylor and his father, George W. Taylor, while visiting in W.E. Casper's place of business on Miami Beach, Florida, did discuss with him the redivision of the Taylor property on Northeast 79th Street and that Ross E. Taylor on those occasions did state to W.E. Casper that the redivision of the property would in no manner affect the life lease or reversionary interest of the plaintiff, George W. Taylor, in the premises aforesaid and that George W. Taylor told his son, Ross E. Taylor, on those occasions that he did not care what the children did with the property so long as his interest in the property was not changed in any respect; that after the execution of the two deeds sought to be cancelled, in August of 1945, that Ross. E. Taylor came to him, the said W.E. Casper, and told him he had obtained title to the northwest corner of the Taylor tract, without any strings to it; that the said W.E. Casper, surprised at such information, asked the said Ross E. Taylor how he had acquired clear title to the premises and Ross E. Taylor at that time and place told him that there was nothing to it, that they had simply supplied the information necessary to the lawyer and had gone down and signed the papers, all of which took less than 15 minutes; that he did not feel he had done anything wrong as the estate would get the property back when he was through with it, any way."
and further offered to prove by witness W.C. Price, the attorney,
"That in his office on the 25th day of August, 1945, before the signing and execution of the two conveyances in question, respectively Plaintiff's Exhibits 11 and 12, and in the presence of all those enumerated by the witness, W.C. Price as having been present in his office, that Mr. George W. Taylor asked that if in signing the conveyances in question he was still protected and had the same rights in the property described in the conveyances as he had always had and enjoyed; that in response to said question Ethel Cory and Ross Taylor stated that he had the same protection as he always had had and that he could sign the instruments with that understanding."
These proffers are illustrative of plaintiff's efforts to prove the representations made by Ross E. Taylor and Ethel E. Cory as charged in the bill. To these proffers Margaret Taylor objected on the ground that even though such representations were made by Ross E. Taylor, they were made in her absence and, therefore, hearsay and not admissible against her, and also interposing the further objection that they were in disparagement of the record title of Ross E. Taylor when made by him and not admissible against her for that reason. The Chancellor sustained the objections and dismissed the bill as to the defendants, Ethel E. Cory and Margaret Taylor. This appeal is from that decree.
The transaction and agreement between the parties leading up to the execution of the deeds was entirely in parol, no written contract or memorial of its terms was made. Evidence of the parol agreement of the parties, its terms and conditions, including any representation charged to have been made to plaintiff, George W. Taylor, by Ross E. Taylor or Ethel E. Cory, or both, concerning the entire transaction, as well as all conversation between them and the plaintiff regarding it prior to or concurrent with the execution of the deeds was admissible. Proof of such may be made by the testimony of the parties (except when prohibited by Section 90.05, Florida Statutes, 1949, F.S.A.) or by any person hearing the discussion of the transaction or terms of agreement or representations made between plaintiff and Ross E. Taylor or Ethel E. Cory, or both of them. If, subsequent to the execution of the deeds, statements against interests were made by Ross E. Taylor or Ethel E. Cory, grantees, they, likewise, are admissible. It seems clear that if Ross E. Taylor had been alive at the time of the trial all the testimony in the above proffers would have been admissible against him. Inasmuch as defendant, Margaret Taylor, his devisee, succeeded to his rights in the land she is in no different position than his prior to his death, so the testimony is admissible against her. 16 Am.Jur. Sec. 33, page 801; 20 Am.Jur. Sec. 593, page 502; 9 R.C.L. Sec. 83, page 87. We think that the evidence of Marie Taylor with respect to the statements of Ross E. Taylor alleged to have been heard by her in his conversation with her husband is admissible because, if true, it shows that Ross E. Taylor was trying to keep from his father, the plaintiff, the fact that the father's interests had been conveyed away by virtue of the conveyances of August 7, 1945. It was of some evidential value in the issues made by the pleadings.
The record discloses that the Chancellor sustained objection to George W. Taylor's testimony concerning the transaction and alleged representations of Ross E. Taylor to him in the presence of Ethel E. Cory on the ground that he was not a competent witness under the dead man's statute, Section 90.05, supra. This was error. According to the allegations of the bill the agreement of Ross E. Taylor and Ethel E. Cory with the plaintiff was made to effectuate their common plan and design to re-divide the tract of land between them. The nature of this agreement between them furthered their interests and was essentially joint in character. Such being the case the provisions of Section 90.05 do not apply and the plaintiff is not disqualified as a witness in his own behalf. In Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792, 798, we held:
"The death of one of several joint contractors who are defendants in a suit does not bring the case within the provision to the statute which renders the other party incompetent to testify as to transactions and communications with one of the parties who is deceased.
"It is only the death of a sole party to a contract, or cause of action in issue and on trial, or the death of all the contractors on one side of it, that operates to exclude a party on the other side from testifying in his own behalf to transactions and communications relating to the contract as to which the opposite party cannot speak. In such cases the reason for the rule does not exist, and therefore neither does the rule itself apply. See Goss v. Austin, 11 Allen (Mass.) 525; Fulkerson v. Thornton, 68 Mo. 468." See also Homewood Dairy Products Co., Inc., v. Robinson, 254 Ala. 197, 48 So.2d 28.
For the reasons indicated the decree dismissing the bill is reversed.
SEBRING, C.J., and TERRELL and ROBERTS, JJ., concur.