(Fla., 74 So. 216.) "This defendant, further answering, says: That during January or February, 1908, Peninsular Naval Stores Company sent a man to inspect the lands and timber purchased by the defendant from Wilson, and it was proposed to the defendant that the Peninsular Naval Stores Company would buy a half interest in the said lands, and that said company would put in the money to finance it, and would also buy 11,000 acres of land adjoining the lands bought by the defendant from Wilson. The defendant refused to give a one-half interest, but did agree to sell the Peninsular Naval Stores Company an undivided one-third interest, upon the condition that they would put up the cash to buy the 11,000 acres of land when the business needed the timber. That the defendant sent the deed he received from R. C. Wilson and wife to complainant, and that the deed which was drawn by complainant's officers was from the defendant and wife to Forest Investment Company'; the cypress timber was not accepted from that deed, and was not included in the deed. This defendant further says that when he approached the complainant and requested it to buy the 11,000 acres adjoining the Wilson land purchased by defendant, Mr. Blount, one of complainant's officers, said the price was too high, and refused to buy it, but that said land has since sold for a much greater price, and that said refusal greatly endamaged the defendant, and that said complainant then and there failed and refused to keep its partnership promise and to buy said land or to advance the money for the purchase of the same." The answer then denies that the complainant is entitled to the relief prayed, or any part thereof, prays the same advantage of the answer as if he had pleaded or demurred. to the bill, and prays to be dismissed with costs. The record does not show that any replication was filed, but does contain a recital of an order by the court appointing a special master. The special master attached to the report of his findings all the evidence adduced before him. The report sets out fully the special master's findings, and the reasons upon which he based them, and contains a statement that it had been agreed by the solicitors for the respective parties that, if the master should find that the complainant was entitled to an accounting, he should state in the report the "amounts he found due, without further testimony." The special master reported his findings to be: First, that the 120 acres of land located in section 31, and particularly described in both the bill and answer, was paid for partly with funds of the complainant and defendant as R. L. Farrell & Co., whose account was carried with the Peninsular Naval Stores Company, naval stores factors, and was not paid by the defendant individually; second, that the S. of section 8, which the complainant and defendant agreed to sell to Yelvington because of the reasons advanced by the defendant, but which, shortly after the execution of the deed, were discovered to be unfoundwas thereupon repured, and chased by Farrell from Yelvington, should be held by the defendant for the benefit of himself and complainant. The master does not find that there was any misrepresentation by the defendant to the complainant in this transaction, but found that, in view of the mistaken circumstances under which the sale was made to Yelvington, and the relations existing between complainant and defendant, the latter should have recovered the land for their joint benefit. It was also pointed out by the master, whose report was very thorough and comprehensive and showed a most careful examination and analysis of the evidence, that the deed from the complainant and defendant to Yelvington did not describe the land at all, and that the legal title therefore did not pass. And although the pleadings did not mention the mistaken description, the master found the equities to be with complainant, and that the deed to Yelvington should be treated as a nullity; the legal title remaining in the defendant and complainant, as before the attempted conveyance. The master did not allow defendant credit for any improvements upon the land which were made for the purpose of agriculture, upon the ground that the evidence showed that the land was unfit for agriculture, because of the impossibility of draining it, which defendant knew; that drainage was a remote possibility, and that "complainant should not be charged, nor defendant credited, with the expense of improvements which must have been so obviously ill-advised;" third, the master found against the defendant's contention that the complainant had no interest in the cypress timber upon the lands, but found that the complainant had a one-third interest therein, and was therefore entitled to one third of the proceeds derived from the sale of the crossties made therefrom and sold by defendant; that the complainant should pay to the defendant one third of the price which defendant paid to Yelvington upon the repurchase of the S. of section 8, with interest; that the complainant was entitled to a partition of the lands described in the amended bill; that the value of the lands was $20,000; that the value of the crossties and cedar cut from the lands by the defendant was $4,220.78, of which the complainant was entitled to one third; that the complainant had paid taxes upon the lands, and was entitled to a refund of two thirds of the amount from defendant, the amount of which the master found to be $240.46. The master allowed an attorney's fee of $2,400, two thirds of which should be paid by the defendant, and the costs, amounting to $72, should be paid in like proportion by them. The defendant by his solicitor filed exceptions to this report, and in such exceptions pointed out particularly the finding of the master to which exception was taken. The exceptions questioned the correctness of the master's findings: First, as to the interest of complainant in the 120 acres of land in section 31; second, as to complainant's interest in the S. of section 8, involved in the Yelvington transaction; third, as to the number and value of the crossties cut from the land and the complainant's interest therein; fourth, as to the finding that the defendant never repaid the $400 to the Peninsular Naval Stores Company, which amount was used to make the first payment on the 120 acres purchased in section 31; fifth, as to the finding in which defendant was not allowed credit for expenses for improvements on the south half of section 8; sixth, as to the value of the lands; seventh, as to the finding that defendant had received $4,220.78 from timber cut from the land, "in which the complainant is entitled to one third;" eighth, as to the amount of solicitors' fees; ninth, as to the finding that complainant was entitled to the relief prayed, subject to the modifications and conditions. stated in the report; and, tenth, as to each and every of the findings and report of the master. The final decree, which was rendered in June, 1915, confirmed the master's report and findings as to the facts and equities, with some modifications. The decree adjudged that the defendant held an undivided third interest in the 120-acre tract in section 31 in trust for the complainant, and ordered a conveyance thereof to complainant upon the payment by it to the defendant of $266.67, with legal interest from May 25, 1911, to the date of payment; that the defendant held an undivided one-third interest in the S. of section 8, T. 9 S., R. 29 E., in trust for complainant, and conveyance thereof should be made by defendant to complainant, upon payment by the latter to the former of the sum of $266.67, with legal interest from June 22, 1911; that the (Fla., 74 So. 216.) equities were with the complainant of S. W. of section 31, T. 8 S., R. 29 E., and the S. section 8, T. 9 S., R. 29 E.; that the complainant is seised in fee simple of an undivided one-third interest, and the defendant of an undivided twothirds interest, in the following described lands: All of sections 5, 6, 7, N. of section 8, all of section 16, and all of section 17, except the N. E. of S. E. thereof, and all of section 18 in township 9 S., Range 29 E. Partition of the lands was ordered to be made as soon as the payments were made by the complainant and conveyances executed by the defendant as directed. Commissioners were appointed to make partition and report their actions and doings to the court. From this decree an appeal was taken by the defendant. Mr. William W. Dewhurst, for appellant: Not having demurred or pleaded, or set up the want of equity in the bill as a defense in the answer, defendant may now question the power of the court to grant the relief prayed in the bill. Barker v. Dacie, 6 Ves. Jr. 681, 31 Eng. Reprint, 1256; Findlay v. Hinde, 1 Pet. 244, 7 L. ed. 130; Mattair v. Payne, 15 Fla. 682; Langdell, Eq. Pl. 95; Morawetz, Priv. Corp. 1882 ed. § 221; 2 Beach, Priv. Corp. §§ 842, 843; Taylor, Priv. Corp. 5th ed. § 130; Bishop v. American Preservers' Co. 157 Ill. 284, 48 Am. St. Rep. 334, 41 N. E. 765. If the answer neither admits nor denies the allegations of the bill, they must be proved upon the final hearing. United States v. Low, 16 Pet. 168, 10 L. ed. 925; Young v. Grundy, 6 Cranch, 51, 3 L. ed. 149; Brown v. Pierce, 7 Wall. 205, 19 L. ed. 134; Warfield v. Gambrill, 1 Gill & J. 510; Slater v. Maxwell, 6 Wall. 268, 18 L. ed. 796; Rogers v. Marshall, 13 Fed. 59; Brooks v. Byam, 1 Story, 297, Fed. Cas. No. 1,947; Lovell v. Johnson, 82 Fed. 206; Stackpole v. Hancock, 40 Fla. 380, 45 L.R.A. 814, 24 So. 914; Hill v. Walker, 6 Coldw. 424, 98 Am. Dec. 468; Smith v. St. Louis Mut. L. Ins. Co. 2 Tenn. Ch. 599; Lykes v. Beauchamp, 49 Fla. 338, 38 So. 603; Gartman v. Jones, 24 Miss. 234; Hood v. Pimm, 4 Sim. 101, 58 Eng. Reprint, 39, 9 L. J. Ch. 63; Bank of Jamaica v. Jefferson, 92 Tenn. 537, 36 Am. St. Rep. 100, 22 S. W. 211. The bill is multifarious. Oliver v. Piatt, 3 How. 412, 11 L. ed. 658; Nelson v. Hill, 5 How. 132, 12 L. ed. 83. A disputed equitable claim must first be established before the claimant can go into partition. Cartwright v. Pultney, 2 Atk. 380, 26 Eng. Reprint, 630; Wild v. Milne, 26 Beav. 504, 53 Eng. Reprint, 993, 11 Mor. Min. Rep. 207; Crawshay v. Maule, 1 Swanst. 495, 36 Eng. Reprint, 479, 1 Wils. Ch. 181, 37 Eng. Reprint, 79, 18 Revised Rep. 126, 19 Eng. Rul. Cas. 467, 11 Mor. Min. Rep. 223; Darby v. Darby, 3 Drew. 495, 61 Eng. Reprint, 992, 25 L. J. Ch. N. S. 371, 2 Jur. N. S. 271, 4 Week. Rep. 413. When real estate is purchased by partners with partnership funds for partnership use and convenience, in the absence of express agreement or of circumstances showing an intent that such estate shall be held for the partners' separate use, it will be considered and treated in equity as vesting in them in their partnership capacity, clothed with an implied trust, and be applied to the payment of partnership debts. Robertson v. Baker, 11 Fla. 225; Price v. Hicks, 14 Fla. 580; Dyer v. Morse, 10 Wash. 492, 28 L.R.A. 107, 39 Pac. 138. Mr. H. L. Anderson also for appellant. Messrs. MacWilliams & Bassett and David R. Dunham, for appellee: Defendant has no right to raise the question of jurisdiction at the present time. Rivas v. Summers, 33 Fla. 539, 15 So. 319; De Cottes v. Clarkson, 43 Fla. 1, 29 So. 442; Williams v. Wetmore, 51 Fla. 625, 41 So. 549; Tubb v. Fort, 58 Ala. 277; 1 Dan. Ch. Pl. & Pr. 6th Am. ed. p. 555; Howell v. Commercial Bank, 51 Fla. 460, 40 So. 76; Brown, B. & Co. v. Lake Superior Iron Co. 134 U. S. 530, 33 L. ed. 1021, 10 Sup. Ct. Rep. 604; Reynes v. Dumont, 130 U. S. 354, 32 L. ed. 934, 9 Sup. Ct. Rep. 486; 11 Rose's Notes (U. S.) 743. Complainant had the right to pray for an accounting in the bill for partition. Carlton v. Hilliard, 64 Fla. 228, 60 So. 220; Arcadia Mercantile Co. v. Branning, 59 Fla. 428, 52 So. 588; Murrell v. Peterson, 57 Fla. 480, 49 So. 31; Atkinson v. Schilman, 60 Fla. 301, 53 So. 844, 56 So. 274; Law v. Taylor, 63 Fla. 487, 58 So. 844; Christopher v. Mungen, 61 Fla. 513, 55 So. 273. Complainant had the right to enter into partnership with defendant and to hold lands in Florida in joint ownership with him. Ulmer v. First Nat. Bank, 61 Fla. 460, 55 So. 405; Circular Advertising Co. v. American Mercantile Co. 66 Fla. 96, 63 So. 3; Indian River Mfg. Co. v. Wooten, 55 Fla. 745, 46 So. 185. Defendant cannot object for the first time in the appellate court that plaintiff is a foreign corporation which has not complied with the statutes relating to foreign corporations, and, therefore, such foreign corporation was without standing to maintain such action. Holmes v. Standard Oil Co. 183 Ill. 70, 55 N. E. 647, affirming 82 Ill. App. 476; Minneapolis Trust Co. v. Verhulst, 74 Ill. App. 350; City Trust, Safe Deposit & Surety Co. v. Wilson Mfg. Co. 58 App. Div. 271, 68 N. Y. Supp. 1004; Crystal River Lumber Co. v. Consolidated Naval Stores Co. 63 Fla. 119, 58 So. 129; Malsby v. Gamble, 61 Fla. 327, 54 So. 766; Mizell Live Stock Co. v. J. J. McCaskill Co. 59 Fla. 322, 50 So. 547; Hartford F. Ins. Co. v. Hollis, 58 Fla. 268, 50 So. 985; Putnam v. Morgan, 57 Fla. 503, 48 So. 629; Patrick v. Kirkland, 53 Fla. 768, 125 Am. St. Rep. 1096, 43 So. 969, 12 Ann. Cas. 540; Hoodless v. Jernigan, 51 Fla. 211, 41 So. 194; Marsh v. Bennett, 49 Fla. 186, 38 So. 237; Robinson v. Springfield Co. 21 Fla. 203; Monk v. Horne, 38 Miss. 100, 75 Am. Dec. 94; Jackson ex dem. Van Schaick v. Davis, 5 Cow. 123, 15 Am. Dec. 451; Barrett v. Wills, 4 Leigh, 114, 26 Am. Dec. 315. Since the powers of corporations are derived solely from statutes, every person is bound, in dealing with a corporation, to take notice of the extent of its powers. Durkee v. People, 155 Ill. 354, 46 Am. St. Rep. 340, 40 N. E. 626; National Home Bldg. & L. Asso. v. Home Sav. Bank, 181 Ill. 35, 64 L.R.A. 399, 72 Am. St. Rep. 245, 54 N. E. 619; 7 R. C. L. § 515; 3 Cook, Corp. 7th ed. 2338; Skinner v. Southern Home Bldg. & L. Asso. 46 Fla. 547, 35 So. 69. Ellis, J., delivered the opinion of the court: The appellant insists that the bill shows upon its face that the court was without jurisdiction, and therefore upon the final hearing should have been dismissed, notwithstanding the answer. It is contended that (— Fla. —, 74 So. 216.) the bill merely seeks an accounting between copartners, while praying for partition of lands, and that partition of partnership lands cannot be decreed until the equities between the partners have been settled; that the bill seeks to adjudicate the rights of the parties upon such a variety of subjects so different in character that they should not be litigated in one suit. It is pointed out that the bill seeks to establish a resulting trust in certain lands, an accounting between copartners, to surcharge a partnership account and a partition of lands held by copartners. It is true that the answer contains no demurrer to the bill upon any specific ground; but, inasmuch as the answer sets up many matters of defense, counsel seek the benefit therefrom either by way of answer, plea, or .demurrer. If the court was not wholly incompetent to grant the relief sought in the bill, the method pursued to question the form of the bill, or the court's jurisdiction, we think, would not avail. No question was raised until after the testimony was taken (if then) as to whether the court had jurisdiction to entertain a bill for partition, to establish a resulting trust, and for an accounting. There are subjects which a court of equity has no power to hear and determine, even by consent of parties; but if the subject-matter be of such character that jurisdiction may be conferred by consent, the defendant Equity-jurisdic- will not be heard tion-consent. to complain if he makes no objection to a hearing, but participates in it. In this case a master was appointed, much testimony was taken, and a decree rendered upon the merits against the defendant, who then makes objection here to the court's jurisdiction. See Central Elevator Co. v. People, 174 Ill. 203, 43 L.R.A. 658, 51 N. E. 254; Brewster v. Colegrove, 46 Conn. 105; Page v. Young, 106 Mass. 313; Detroit Motor Co. v. Third Nat. Bank, 111 Mich. 407, 69 N. W. 726; Whiting v. Root, 52 Iowa, 292, 3 N. W. 134; Cutting v. 1 A.L.R.-3. Dana, 25 N. J. Eq. 265; Baron v. Korn, 127 N. Y. 224, 27 N. E. 804; Mayo v. Murchie, 3 Munf. 358; United Shoe Machinery Co. v. Holt, 185 Mass. 97, 69 N. E. 1056; Richmond v. Bennett, 205 Pa. 470, 55 Atl. 17. The rule has several times been recognized by this court. See Griffin v. Orman, 9 Fla. 22; Williams v. Wetmore, 51 Fla. 614, 41 So. 545; De Cottes v. Clarkson, 43 Fla. 1, 29 So. 442; Rivas v. Summers, 33 Fla. 539, 15 So. 319. See also 10 R. C. L. 368 and authorities cited. in This bill had for its principal object a partition of the lands owned in common by appellant and appellee, which, exclusive of the lands in T. 8 S., R. 29 E., amounted to 4,447.41 acres, a one-third interest in which Farrell conveyed to the Forest Investment Company 1908. The acreage in T. 8 S., R. 29 E., amounted to about 1800_acres, according to the deed from Farrell to the Forest Investment Company, which lands were also described in the bill. So far as the acreage was concerned, a tenancy in common was alleged to exist between the complainant and defendant as to all of it. There were two tracts of land embraced in the lands above referred to, concerning which questions had arisen as to complainant's interest, which questions the court was asked to determine as incidental to the main relief sought by the bill. Those questions arose out of the relations existing between complainant and defendant at the time when the incidents occurred giving rise to the differences between them. The Forest Investment Company and the defendant were interested together as copartners in a turpentine business; their joint account was carried by the Peninsular Naval Stores Company under the name of R. L. Farrell & Co. In this business the Forest Investment Company owned a one-third interest. It owned as purchaser from Farrell an undivided one-third interest in the lands described. As incident to the turpentine business of this partner |