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Chancery and Equity

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Bob View profile  

Hurt  

Darren Michaels has undertaken a study of equity and chancery over the past 
few months.  If you don't have a clue about it, send me return email asking 
your questions, and I'll prepare the best answer I can, with Darren's help. 

I have made the point to Darren that equity means fairness, or natural 
justice, and that therefore legislators enact laws with equity as the 
motive, if they act with integrity, honor, and loyalty to principles of good 
government, rather than partisan or political expediency. 

However, statutes cannot cover every situation and they do get corrupted by 
partisan and other political influences.  That leaves it to the chancery or 
equity courts (or those functions in the new courts that have only one type 
of action, "civil") to give the justice that fairness demands in spite of 
the law.  Equity actions relieve the legislature of the obligation to write 
intricate and elaborate laws, presuming we can trust chancery judges to "do 
the right thing" in their rulings toward fairness and morality. 

A chancery judge in the chancery courts of early England, sometime after 

King John, wielded justice in the name of the king.  They granted *equitable 
relief*  to make up for shortfalls in the common and statutory laws.  They 
brought justice to weak victims whom the strong (wealthy, powerful, 
politically connected) would otherwise cheat, abuse, or enslave by wrongly 
using the law as a tool. 

One's pleading must invoke chancery function of the court, however, by 
claiming an equity right and demanding equitable relief.  Otherwise, the 
judge will treat the matter as an issue of the application of law, not 
fairness, to the controversy.  Presumably, by invoking equity function, a 
plaintiff can find a way out of the labyrinthine snares fo law courts, 
particularly in matters of family law and business relations. 

Unfortunately, we cannot reliably trust multipurpose, politically influenced 

judges to decide and rule on equity cases equitably.  America has no king to 
hand-pick chancery judges for their uncompromising sense of fairness.  But 
most probably do the best they can under the circumstances. 

Even Aristotle recognized the natural conflict between law and equity.   He 
suggested juridical equity to temper the tendency strictly and unjustly to 
apply laws, particularly laws unjust in the particular circumstances in 
question.  Fortunately, the equity function of chancery still abides in our 
multifunction courts which appear to the unsuspecting as ONLY courts of 
law. 

Thus, as Martha Stewart might say had she not engaged in insider trading, 
the chancery court "is a good thing." 

*Law or Equity* 

“Law is nothing without equity, and equity is everything, even without Law. 
 Those who perceive what is just and what is unjust only through the eyes of 
the law, never see it as well as those who behold it with the eyes of 
equity.  Law may be looked upon, in some manner, as an assistance for those 
who have a weak perception of right and wrong, in the same way that optical 
glasses, are useful for those who are shortsighted, or those whose visual 
organs are deficient.  Equity, in its true and genuine meaning, is the soul 
and spirit of the law; positive law is construed, and rational law is made 
by it. (c)”  “*Institutes of American Law”* by John Bouvier 

*Bouviers Law Dictionar**y:* 

* 
* 
*EQUITY*. In the early history of the law, the sense affixed to this word 
was exceedingly vague and uncertain. This was owing, in part, to the fact, 
that the chancellors of those days were either statesmen or ecclesiastics, 
perhaps not very scrupulous in the exercise of power. It was then asserted 
that equity was bounded by no certain limits or rules, and that it was alone 
controlled by conscience and natural justice. 3 Bl. Com. 43-3, 440, 441. 

2. In a moral sense, that is called equity which is founded, ex oequo et 

bono, in natural justice, in honesty, and in right. In an enlarged. legal 
view, "equity, in its true and genuine meaning, is the soul and spirit of 
the law; positive law is construed, and rational law is made by it. In this, 
equity is made synonymous with justice; in that, to the true and sound 
interpretation of the rule." 3 Bl. Com. 429. This equity is justly said to 
be a supplement to the laws; but it must be directed by science. The Roman 
law will furnish him with sure guides, and safe rules. In that code will be 
found, fully developed, the first principles and the most important 
consequences of natural right. "From the moment when principles of decision 
came to be acted upon in chancery," says Mr. Justice Story, "the Roman law 
furnished abundant materials to erect a superstructure, at once solid, 
convenient and lofty, adapted to human wants, and enriched by the aid of 
human wisdom, experience and learning." Com. on Eq. Jur. §23 Digest, 54. 

3. But equity has a more restrained and qualified meaning. The remedies for 
the redress of wrongs, and for the enforcement of rights, are distinguished 
into two classes, first, those which are administered in courts of common 
law; and, secondly, those which are administered in courts of equity. Rights 
which are recognized and protected, and wrongs which are redressed by the 
former courts, are called legal rights and legal injuries. Rights which are 
recognized and protected, and wrongs which are redressed by the latter 
courts only, are called equitable rights and equitable injuries The former 
are said to be rights and wrongs at common law, and the remedies, therefore, 
are remedies at common law; the latter are said to be rights and wrongs in 
equity, and the remedies, therefore, are remedies in equity. Equity 
jurisprudence may, therefore, properly be said to be that portion of 
remedial justice which is exclusively administered by a court of equity, as 
contradistinguished from that remedial justice, which is exclusively 
administered by a court of law. Story, Eq. §25. Vide Chancery, and the 
authiorities there cited; and 3 Chit. Bl. Com. 425 n. 1. Dane's Ab . h. t.; 
Ayl. Pand. 37; Fonbl. Eq. b. 1, c. 1; Wooddes. Lect. 114 Bouv. Inst. Index, 
h. t. 

*EQUITY, COURT OF*. A court of equity is one which administers justice, 

where there are no legal rights, or legal rights, but courts of law do not 
afford a complete, remedy, and where the complainant has also an equitable 
right. Vide Chancery. 

*"A Treatise on Suits in Chancery"* 

Henry Gibson 1907, 2nd edition 
http://openlibrary.org/books/OL6983680M/A_treatise_on_suits_in_chancery 
<http://www.archive.org/stream/cu31924084259872#page/n35/mode/2up> 

"§ 15. Equity Jurisprudence, Pleadings, and Practice, in Other States.— The 
jurisprudence of Equity, and its pleadings and practice prevail in all the 
States of the Union ; and in many of the States have completely supplanted 
the pleadings and practice of the common law. There is an opinion, somewhat 
prevalent, .that there is no Equity jurisprudence in those States of the 
Union which have abolished Chancery Courts. This is a gross misconception. 

The doctrines, principles and remedies of the Chancery Court are in full 
force in every State ; and while, in many of the States, there are no 
separate Chancery Courts, in all of them the jurisprudence of Equity is, 
nevertheless, recognized and administered as fully as though special courts 
of Equity were in existence, in those States that have adopted the "code 
practice," or "reformed procedure," as it is variously termed, instead of 
the principles, pleadings, practice and remedies of the Chancery Court being 
abolished, in fact the common law practice pleadings and remedies have been 
abolished, or greatly conformed to those in Chancery. Under the so-called ' 
' code practice, ' ' the principal pleadings are : 1, The petition or 
complaint, which is identical with a bill in Chancery ; 2, A special 
demurrer, and 3, An answer, which are the same in form and substance as the 
like pleadings in Chancery. 

In short, those States that have adopted the '' code practice, '' have, in 
effect, by statute substituted the simple and pliable pleadings of Chancery 
for the stiff and cumbrous forms of the common law. And so, although in many 
of the States there are no separate Chancery Courts, yet in those very 
States the pleadings, practice and principles of Chancery are prevalent, and 
well nigh supreme, although to some extent under new names.34 And in the 
Federal Courts the principles, pleading and practice of Equity remain wholly 
unimpaired. 

33 1 Pom. Eq. Jur., §59. I Si Ibid, §§282-288. 

--- 

69. Negligence, 28 and Its Effects. It has often been said that, in general, 
nothing can force a Court of Equity into activity but conscience, good 
faith, and reasonable diligence. 
Equity aids the vigilant, not those who slumber on their rights. Laches [the 
legal doctrine that a person who waits too long to bring a claim alleging a 
wrong shall not be permitted to seek an equitable remedy], delay, 
indifference and passive acquiescence, when not in any way caused by the 
other party, are hurtful, if not fatal, to complainant's rights in a Court 
of Equity. The doctrine that Equity requires good works as well as good 
faith, *is especially enforced against trustees*, and all other persons, who 
act in a capacity of trust for others especially in a fiduciary capacity, 
such as *executors, administrators*, guardians, agents, receivers, *clerks 
of courts* and of individiuals, secretaries, treasurers, and other officers 
of firms, societies and corporations, book-keepers, guardians ad litem, next 
friends, attorneys and confidential advisors. 

29 Any of these persons, when acting for others in reference to matters of 
property or business intrusted to their care and management, is to that 
extent a trustee, and subject to all the obligations imposed by Courts of 
Equity on trustees, and held chargeable for all losses resulting from 
their want 
of due diligence, equally with losses resulting from downright bad faith. 

*§ 70. Laches, and Its Effects.* 

*But no delay will prejudice a defrauded party as long as he was ignorant of 
the fraud ; *44* and, especially, if the defendant concealed the facts which 
it was his duty to disclose, or deceived the complainant by misstatements, 
or otherwise lulled his suspicions. The sleep of the complainant cannot be 
used as a defence of his own wrong.* 

§ *80. General Rule as to Parties Complainant*. Footnote 3. 3 Sto. Eq. PL, 

§§ 49-66; 1 Dan. Ch. Pr., 5. It is one of the boasts of the Chancery 
Courts that their doors are open to every person who has suffered a wrong 
cognizable in Equity. 

*OUTLINE OF A BILL IN EQUITY* 

I. Bill in Equity is a  (1.170 Counterclaim FL Rules) in personnam and not 

in rem and plead a special circumstance of fraud, mistake or breach of trust 
for the performance of the breach of trust (See section (j) Demand Exceeding 
Jurisdiction; Transfer of Action.) 

A. FOUNDATION FOR TRUST: WHO, WHAT WHEN WHERE, WHY HOW 

B. ELEMENTS OF TRUST 
C. DECLARATORY RELIEF HEARING: To prove the validity of the trust for a 
"final decree" (not declaratory judgment). 
D. BILL OF DISCOVERY FOR PROOF OF "RIGHTS IN EQUITY" : "Pleading special 
matters." in "negative averments" 
E. EXHIBITS INCORPORATED HEREIN BY REFERENCE 
F. RELIEF ASKED FOR: Performance for the breach of trust 
G.ENJOINING ACTION: To freeze the At-Law side 
H. SUBPOENA FOR DISCOVERY DOCS:AND  DUECES TECUM  "In personnam action on 
the man not the fiction" 
I. PROTECTIVE ORDER OR SEALING THE CASE 
J. MOTION TO DISMISS THE CONCURRENT AT-LAW SIDE FOR LACK OF EQUITY AND THE 
ANCILLARY (That's the secondary suit 1.701(j)) 

II. AFFIDAVIT IN SUPPORT 

A. FOUNDATION 
B. STATING FACTS FOR TRUST AND BREACH OF TRUST, ETC. (Negative averment if a 
breach) 

III. MEMORANDUM IN EQUITY 

IV. MEMORANDUM IN TRUST 
V. ASK FOR EQUITABLE RELIEF example accounting, tracing, receivership, 
performance for the breach of trust, mandatory injunction, etc. 

*Equity-related Ruling in Florida* 

*Hutchens v. Maxicenters, 
U.S.A.,*<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=0&Se...> 
* 541 So.2d 618, 13 Fla. L. Weekly 986, 14 Fla. L. Weekly 931 (Fla.App. 5 
Dist., Apr 21, 1988) (NO. 87-1515)* 

Rulings cited 

1<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=735&FindTy...> 

Hansard Const. Corp. v. Rite Aid of Florida, Inc., 783 So.2d 307, 309, 26 
Fla. L. Weekly D871, D871 (Fla.App. 4 Dist. Mar 28, 2001) (NO. 4D99-3228) 

2<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=735&FindTy...> 

381651 Alberta, Ltd. v. 279298 Alberta, Ltd., 675 So.2d 1385, 1387, 21 Fla. 
L. Weekly D1581, D1581 (Fla.App. 4 Dist. Jul 10, 1996) (NO. 94-1653) 

3<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=735&FindTy...> 

Burns v. Estate of Cobb, 589 So.2d 413, 416+, 16 Fla. L. Weekly D2864, 
D2864+ (Fla.App. 5 Dist. Nov 14, 1991) (NO. 91-313, 91-328) *HN: 1 (So.2d)* 

4<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=735&FindTy...> 

White v. Brousseau, 566 So.2d 832, 835, 15 Fla. L. Weekly D2129, D2129 
(Fla.App. 5 Dist. Aug 23, 1990) (NO. 89-1669) 

5<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=999&FindTy...> 

McKee v. City of Casselberry, 2002 WL 34501671, *34501671+ (Trial Order) 

(Fla.Cir.Ct. Oct 14, 2002)* Amended Order Setting Non-Jury Trial* (NO. 
99-CA-1430-16I-E, 99-CA-511-161-E) " 

District Court of Appeal of Florida, 

Fifth District. 

G. Thomas HUTCHENS, Appellant, 

v. 

MAXICENTERS, U.S.A., Appellee. 

*No. 87-1515.* 

April 21, 1988. 

On Motion for Rehearing En Banc April 13, 1989. 

Buyer of automobile appealed from a nonfinal order of the Circuit Court, 

Orange County, B.C. Muszynski, J., denying his motion to dissolve a 
prejudgment writ of replevin and to recover possession of the automobile. 
The District Court of Appeal, Sharp, C.J., held that trial court erred in 
requiring replevin bond of only $1,000 for automobile whose sale price was 
$34,113. 

Affirmed; remanded with directions. 

Motion for rehearing en banc denied. 

Cowart, J., dissented with opinion in which Cobb, J. concurred. 

West Headnotes 

*Replevin 335 33(1)* 

335<http://www.westlaw.com/KeyNumber/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&...>Replevin 

      335VI<http://www.westlaw.com/KeyNumber/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&...>Proceedings 
for Taking and Redelivery of Property 

            335k33<http://www.westlaw.com/KeyNumber/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&...>Replevin 
Bond or Undertaking 

335k33(1)<http://www.westlaw.com/KeyNumber/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&...>k. 
In General. Most 
Cited Cases<http://www.westlaw.com/Digest/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&Doc...> 

Trial court erred in requiring a replevin bond of only $1,000 to recover 

possession of an automobile, where factual dispute concerning respective 
rights to the automobile did not turn on any sums due under contract between 
the parties and thus only applicable statutory factor was sales price of the 
automobile which was $34,113; thus, replevin bond should have been at least 
double that amount. 

**618* Harry L. Lamb, Jr., of Perry & Lamb, P.A., Sanford, for appellant. 

Charles G. DeMarco, P.A., Maitland, for appellee. 

SHARP, Chief Judge. 

Hutchens appeals from a non-final order denying his motion to dissolve a 

prejudgment writ of replevin and recover possession of a Mercedes automobile 
from Maxicenters, U.S.A. We agree that Maxicenters established a prima facie 
right to possession of the Mercedes through constructive trust principles, 
and that venue was properly set in Orange County because the car was 
actually seized in Orange County and had been used in Orange County. § 
78.03, Fla.Stat. 
(1987)<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000006&Do...> 
. 

However, we agree with Hutchens that the trial court erred in requiring a 
replevin bond of only $1,000.00. The replevin statute provides: 

The petitioner *must post bond in the amount of twice the value of the goods 
subject to the writ or twice the balance *619 remaining due and owing, 
whichever is lesser as determined by the court* as security for the payment 
of damages the defendant may sustain when the writ is obtained wrongfully. 
(Emphasis supplied). 

The factual dispute in this case concerning the parties' respective rights 
to the Mercedes does not turn on any sums due under a contract between the 
parties. *Compare **Lease Financing Corporation v. National Commuter 
Airlines, Inc.,*<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=735&FindTy...>462 
So.2d 564 (Fla. 3rd DCA 
1985)<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=735&FindTy...>. 
Therefore, the only applicable statutory factor is the value of the car 
replevined. Evidence at the hearing indicated Hutchens paid $34,113.00 for 
the car. Therefore, the replevin bond should be at least double that amount. 

Accordingly, we affirm, but remand with directions to the trial court to set 
the replevin bond at twice the value of the Mercedes. 

AFFIRM; REMAND WITH DIRECTIONS TO INCREASE THE REPLEVIN BOND. 

DAUKSCH and ORFINGER, JJ., concur. 

ON MOTION FOR REHEARING EN BANC 

PER CURIAM. 

The Motion for Rehearing En Banc is denied. 

SHARP, C.J., and DAUKSCH, ORFINGER, DANIEL and GOSHORN, JJ., concur. 

COWART, J., dissents with opinion in which COBB, J., concurs. 

COWART, Judge, dissenting. 

This case involves a most important and fundamental practice and procedural 
issue as to the present status in Florida of the difference between law and 
equity and the difference between remedies and causes of action which should 
be openly addressed en banc by this court and the Florida Supreme Court. The 
essential issue is whether the 1954 merger of law procedure and equity 
procedure has resulted in an amalgamation of the theory and substance of 
those two bodies of law to the extent that a strictly law remedy, such as 
replevin, can now be used to directly enforce a strictly equitable cause of 
action, such as an action to establish a constructive trust. 

An employee steals money from his employer and uses it to purchase an 
automobile with the legal title in the employee's name. Can the employer 
recover possession of the automobile from the employee by an action at law 
for replevin? The answer should be no. 

Replevin is a possessory law action. The employer does not have legal title 
to the automobile 
FN1<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darren %20Michaels/Hutchens%20v.%20Maxicent
is not otherwise entitled to the immediate possession of it. The 
employee, of course, has violated substantive legal rights of the employer 
and the employer does have the choice of several LEGAL REMEDIES to redress 
the violation of these rights. The employer can recover his stolen money by 
suing the employee at LAW on one or more theories of recovery (SUBSTANTIVE 
CAUSES OF ACTION) (for example, the tort of CONVERSION or implied 
ASSUMPSIT,(A PROMISE TO SOMETHING)  specifically, the implied contractual 
theory known as the COMMON COUNT for MONEY HAD AND RECEIVED), the same as 
the employer can sue any stranger who converts his property, and obtain a 
money judgment, have execution issue and cause the sheriff to seize and sell 
the automobile **620* (or other leviable property of the employee) to 
satisfy the judgment. However, a court of LAW does not have the SUBJECT 
MATTER JURISDICTION necessary for it to recognize or adjudicate the breach 
of TRUST which is inherent in the employee's theft from his employer, or to 
provide the employer a direct customized EQUITABLE REMEDY. COURTS OF EQUITY 
have EXCLUSIVE JURISDICTION to do that. *By proper allegations of fact and 
demand for relief* 
FN2<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darren %20Michaels/Hutchens%20v.%20Maxicent
a complaint in EQUITY the employer 
*can INVOKE the EXCLUSIVE JURISDICTION of a COURT OF EQUITY to recognize the 
TRUST relationship* between the employee and the employer, to find and 
adjudicate the employee's breach of that TRUST, and to exercise the *special 
* POWER and AUTHORITY of that *particular* branch, system, or body of law 
known as EQUITY or CHANCERY (1) *to recognize an equitable cause of action 
because of the lack of power of a COURT of LAW to recognize the employer's 
SUBSTANTIVE EQUITABLE RIGHTS, *which are not known to, or cognizable by, 
courts of law and (2) to provide any *peculiar* and *special *EQUITABLE 
REMEDIES that might be needed to enforce the employer's substantive 
equitable rights which are exemplified by corresponding EQUITABLE CAUSES OF 
ACTION. Specifically, the employer may plead an EQUITABLE CAUSE OF ACTION 
for a CONSTRUCTIVE TRUST, and seek an equitable adjudication that the 
employee's purchase of the automobile with the employer's money resulted, in 
equity and fairness, in the employee holding the LEGAL TITLE to the 
automobile in TRUST for the USE AND BENEFIT of the employer who thereby 
became the beneficial or equitable titleholder, OR, if he prefers, the 
employer can view and plead the facts to state an equitable cause of action 
for an EQUITABLE LIEN and obtain an adjudication that the employee's LEGAL 
TITLE to the automobile is encumbered by an EQUITABLE LIEN in favor of the 
employer to the extent that the employer's money was used as purchase money 
for the automobile. If a CONSTRUCTIVE TRUST is established, the equity court 
may EXECUTE or enforce the trust by ordering (in the form of a mandatory 
injunction) the employee to transfer the legal title to, and possession of, 
the automobile to the employer as beneficial owner, and enforce that 
injunction or order by the equity court's contempt 
power,FN3<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/ Darren%20Michaels/Hutchens%20v.%20Ma
IGHLIGHTED.rtf#Document1zzB00331988051374>and, 
if necessary, as 
relief incident to the exercise of its exclusive equity jurisdiction, the 
equity court can enforce the employer's resulting legal title and right to 
possession by any LAW REMEDY available to a law court (such as a writ of 
replevin or a money judgment should the automobile become lost or 
destroyed). If an EQUITABLE LIEN is established, the equity court can 
enforce that lien in any manner that a law court can enforce a lien 
cognizable by law. 

FN1.<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darre n%20Michaels/Hutchens%20v.%20Maxicen
legal titleholder of property is presumptively entitled to possession 
of 
that property. Thus in Hughes Trust & Banking Co. v. Consolidated Title Co., 
81 Fla. 568, 88 So. 266 
(Fla.1921)<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=734&FindTy...>, 
when officers of an abstract company signed a conditional contract of sale 
subject to ratification by stockholders and delivered the physical assets of 
the company to a prospective purchaser, the legal title to the assets 
remained in the abstract company, so when the stockholders refused to ratify 
the sale, the abstract company's proper remedy to recover its assets was an 
action at law for replevin and it was therefore error for the chancellor not 
to dismiss the abstract company's bill for equitable injunctive relief. 

FN2.<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darre n%20Michaels/Hutchens%20v.%20Maxicen
Fla.R.Civ.P. 
1.110(b)<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000006&Do...> 
. 

FN3.<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darre n%20Michaels/Hutchens%20v.%20Maxicen
*See* Fla.R.Civ.P. 
1.570(c)<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000006&Do...> 
. 

“Equity jurisdiction” as distinguished on the one hand from the general 

power to decide matters at all, and on the other hand, from the jurisdiction 
“at law” or “common-law jurisdiction,” is the power to hear certain kinds 
and classes of civil causes according to the principles of the method and 
procedure adopted by the courts of chancery, and to decide them in 
accordance with the doctrines and rules of equity jurisprudence, which 
decision may involve either (1) the determination of the equitable rights, * 
estates* and interests of the parties to such causes, or (2) the granting of 
equitable remedies. In order that a cause may come within the scope of 
equity jurisdiction, one of two alternatives is essential: (1) either the 
primary right, estate or interest to be maintained, or the violation of 
which furnishes the cause of action, must be equitable rather than legal; or 
(2)(a) the remedy granted must be in its nature purely equitable, or (2)(b) if 
it be a remedy which may also be given by a court of law, it must be one 
which, under the facts and circumstances of the case, can only be made 
complete and adequate through the application of equitable doctrines, 
principles or remedies.FN4<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_La w2/Darren%20Michaels/Hutche
20HIGHLIGHTED.rtf#Document1zzB00441988051374>It 
is customary 
**621* to distinguish equitable jurisdiction as exclusive and concurrent, 
which distinction relates wholly to the nature and form of the remedies and 
properly belongs, therefore, only to that part of the jurisdiction which is 
based upon these remedies, i.e., (2)(a) or (2)(b) above. Equity jurisdiction 
embraces both cases for the maintenance or protection of primary rights, 
estates and interests purely equitable, and cases for the maintenance or 
protection of primary rights, estates and interests purely legal; and in the 
latter class of cases the remedies granted may be of a kind which are 
peculiar to equity courts, such as, reformation, cancellation, injunction, 
etc., or remedies of a kind which are administered by courts of law, as the 
recovery of money, or of the possession of specific real and personal 
property. The distinction between the exclusive and concurrent jurisdiction 
of equity represents the fact that the two kinds of remedies, equitable and 
legal, may, under proper circumstances, be obtained in the class of cases 
that involve the recovery of money or of the possession of specific things. 
FN5<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darren %20Michaels/Hutchens%20v.%20Maxicent

FN4.<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darre n%20Michaels/Hutchens%20v.%20Maxicen
Pomeroy, Equity Jurisprudence, Sec. I, Fundamental Principles and 
Divisions, § 130, p. 176 (5th Ed., Symons, 1941); *see also* Kooman, Florida 
Chancery Pleading and Practice, Sec. 4, Definition of Equity Jurisdiction, 
p. 7 (1939). *Also see **Malone v. 
Meres,*<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=734&FindTy...>91 
Fla. 709, 109 So. 677 
(1926)<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=734&FindTy...> 
. 

FN5.<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darre n%20Michaels/Hutchens%20v.%20Maxicen
Pomeroy, Equity Jurisprudence, Sec. I, Divisions-Equity Jurisdiction 
as 
Exclusive, Concurrent and Auxiliary, § 136, p. 186 (5th Ed., Symons, 1941). 

The exclusive jurisdiction of equity extends to and embraces, (1) all civil 
cases in which the primary right violated or to be declared, maintained or 
enforced is purely equitable and not legal, and (2) all civil cases in which 
the adjudication sought involves a right, estate, title, or interest created 
by equity, and not by 
law.FN6<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Da rren%20Michaels/Hutchens%20v.%20Maxic
HLIGHTED.rtf#Document1zzB00661988051374>This 
class of cases, of course, includes the 
equitable concepts of unjust enrichment and constructive trust and the 
interest in property created by a court of equity by application of the 
doctrine of constructive trusts. This class of cases falls under equitable 
jurisdiction alone, because of the nature of the primary or substantive 
right to be established, redressed, maintained, or enforced and not because 
of the nature of the remedies to be granted. Although in most such 
instances, the remedy is also equitable, it need not be necessarily so, such 
as, where, as in this case, the right to possession of a specific automobile 
is involved. Pomeroy 
FN7<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darren %20Michaels/Hutchens%20v.%20Maxicent
the proposition controlling this case, as follows: 

FN6.<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darre n%20Michaels/Hutchens%20v.%20Maxicen
*See generally,* 1 Pomeroy, Equity Jurisprudence, Sec. I, Exclusive 
Jurisdiction-Where Primary Right is Purely Equitable, § 137, p. 187 and Sec. 
II, The Exclusive Jurisdiction, § 146, p. 198 (5th Ed., Symons, 1941). 

FN7.<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darre n%20Michaels/Hutchens%20v.%20Maxicen
Pomeroy, Equity Jurisdiction, Part I, Ch. I, Sec. I, Exclusive 
Jurisdiction-Where Primary Right is Purely Equitable, § 137, p. 188, Note 17 
(5th Ed., Symons, 1941). 

*It is a proposition of universal application that courts of law never take 

cognizance of cases in which the primary right, estate, or interest to be 
maintained, or the violation of which is sought to be redressed, is purely 
equitable, unless such power has been expressly conferred by statute; and **if 
the statutes have interfered and made the right or the violation of it 
cognizable by courts of law, such right thereby becomes to that extent 
legal.( Its going to give an equitable relief – at law cannot cross away)*** 

This “proposition of universal application” is no “hyper-technical view.” 

The exclusive jurisdiction of equity includes all civil cases based upon or 
relating to equitable estates, interests, and rights in property as the 
subject-matter of the action. *Chief among these are cases involving the 
recognition of trusts arising by operation of law from the conduct of 
parties(INTENT).* Constructive trusts are one such species and are raised by 
equity for the purpose of working out right and justice, where there was no 
intention of the party to create a trust relationship. All instances of 
constructive trusts may be referred to what equity denotes as fraud, either 
actual or constructive, including acts or omissions in violation of 
fiduciary obligations. If one party obtains the legal title to property by 
fraud or by violation of confidence or of fiduciary relations or in any 
other unconscientious manner, so that he cannot equitably **622* retain the 
property which really belongs to another, equity carries out its theory of a 
double ownership, equitable and legal, by impressing a constructive trust 
upon the property in favor of the one who is in good conscience entitled to 
it and who is considered in equity as the beneficial owner. *Whenever a 
person in a fiduciary capacity breaches his trust and purchases property 
with trust funds and takes the title thereto in his own name, without any 
declaration of trust, a trust arises with respect to such property in favor 
of the cestui que trust or beneficiary (BINGO !!!!) *. Equity regards such a 
purchase as made in trust for the person beneficially interested, 
independent of any imputation of fraud and without requiring any proof of an 
intention to violate the fiduciary obligation because it is assumed that the 
purchaser intended to act in pursuance of his fiduciary duty and not in 
violation of it.FN8<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Dar ren%20Michaels/Hutchens%20v.%
LIGHTED.rtf#Document1zzB00881988051374> 

FN8.<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darre n%20Michaels/Hutchens%20v.%20Maxicen
*See* 1 Pomeroy, Equity Jurisprudence, Sec. 11, The Exclusive 
Jurisdiction-Trusts Arising by Operation of Law, § 155, p. 209 and 4 
Pomeroy, Equity Jurisprudence, Sec. V, Constructive Trusts § 1044, p. 93 
(5th Ed., Symons, 1941) generally. 

 *Williams Management Enterprises, Inc. v. 

Buonauro,*<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=735&FindTy...>489 
So.2d 160 (Fla. 5th DCA 
1986)<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=735&FindTy...>in 
essence, holds only that the common law remedy of replevin relates 
only 
to tangible personal property that a sheriff, executing a writ, can 
physically identify and seize and is inappropriate as applied to an 
intangible, such as, the debtor-creditor relationship existing between a 
lawyer and a client who has deposited money in the lawyer's trust account or 
as exists between a depositor and a bank as to monies deposited by the 
depositor with the bank. Therefore, the 
*Buonauro*<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&Se...>case 
is inapplicable in this case where the property sought to be 
replevined 
is a specific Mercedes automobile. 

However, where the right to possession of specific personal property is not 

a right in law, such as that of a legal titleholder or one claiming 
possession by or through the legal titleholder, but is a right cognizable 
only in equity and which must first be established by the bringing of a 
cause of action in equity the remedy of replevin in a court of law is 
unavailable, the claimant must sue in equity to have the equitable right 
established and that equitable right, enforced or established as a legal 
right, and may not, alternatively, file an action at law for replevin and 
establish the right to possession in a court of law based on equitable 
principles. 

The line between these two branches or systems or bodies of law, while 
unclear and archaic to many who are unfamiliar and impatient with the 
historic reasons for it, was, and is, JURISDICTIONAL, although in a peculiar 
sense of that word. It clearly existed as part of the “common and statute 
laws of England” “down to the 4th day of July, 1776,” has not been changed 
by statute in Florida and is of force in this state by virtue of section 
2.01, Florida Statutes<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000006&Do...>. 
In Florida since the adoption and ratification of the Constitution of 1868, 
circuit courts have been courts of general jurisdiction with original 
jurisdiction in all cases of law not cognizable by inferior law courts and 
with original jurisdiction in all cases of equity. In 1954, the Florida 
Supreme Court merged the 1950 Florida Common Law Rules and the 1950 Florida 
Equity Rules into one practice and procedure. However, neither by 
constitutional amendment, nor by legislative act, nor by court rule, has 
there been a merger or elimination of differences in substance between the 
two bodies of law known as common law and equity. The contrary view fails to 
recognize the vast and valuable differences between substantive law and 
procedure, between “right” and “remedy,” and between “law” and “equity.” 

Unfortunately, equity is no longer taught in our law schools as a separate 

body of substantive 
law.FN9<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Da rren%20Michaels/Hutchens%20v.%20Maxic
HLIGHTED.rtf#Document1zzB00991988051374>The 
separate treatises on the subject-Pomeroy, Story, and Kooman-are now 
substantially out of print and the field is clearly declining in recognition 
**623* and use.FN10<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/D arren%20Michaels/Hutchens%2
GHLIGHTED.rtf#Document1zzB010101988051374>Generally 
speaking, however, law courts have only the jurisdiction to render 
money judgments and common law writs of ejectment and replevin. All actions 
for more specific relief, such as, cases involving dissolutions of marriage, 
custody, guardianships, dissolutions of partnership, accounting, mortgage 
foreclosure, partition, subrogation, specific performance of contracts, *the 
adjudication of equitable rights of beneficiaries under **express 
trusts**,*the establishment of equitable liens, resulting trusts and 
constructive 
trusts, actions to reform, cancel or rescind instruments and agreements, 
actions for declaratory decrees, and actions for injunctions and to quiet 
title, are all causes of action which are peculiarly cognizable only in 
equity or chancery and are not within the jurisdiction of a court exercising 
only common law jurisdiction. *This court does not have authority to 
abolishthe substantive distinctions between common law and equity, nor 
has the 
effect of such a proposal been carefully considered. It is more complicated 
than merely writing,* “There is no reason *in this case* why a court of law 
cannot apply equitable principles, and grant the legal relief requested” or 
“There appears to be no rational basis to dichotomize this remedy....” Why 
“in this case”? Is the substantive difference between law and equity to be 
abolished in Florida case by case? Why are we starting in this case? In the 
next case are we to approve ejectment actions at law to enforce a 
plaintiff's claim of an equitable title to a parcel of land? Or use 
equitable remedies to enforce bare legal rights based on contract and tort 
principles? As the parties of replevin and ejectment actions are entitled to 
jury trials, will we not need Standard Jury Instructions explaining to 
juries the basis upon which judges of courts of equity have historically 
applied equity principles and exercised judicial discretion in equity cases? 
Are the parties in other cases founded upon equitable causes of action, 
including dissolutions of marriage, likewise entitled to jury trials? A 
court of law adjudicates cases based on legal, not equitable, principles and 
rights and can grant only legal remedies to enforce legal rights and to 
redress the violation of legal rights. A court exercising equitable 
jurisdiction adjudicates cases based on equitable and legal causes of action 
and principles and recognizes both legal and equitable rights but may, as 
needed to enforce equitable rights, use either remedies which are 
exclusively available in equity, or remedies that are available to law 
courts to enforce legal rights, i.e., money judgments. The common law 
concept of trusts is based on dividing title to property into two concepts, 
one legal and the other equitable, with a trust relationship being involved 
when the equitable title is separated from the legal title with the 
resulting necessity of dual concepts of legal and equitable rights and 
remedies. How much are we to disregard or change? What is the intended or 
probable result? While unnecessarily complicated to those who are unfamiliar 
with the reason for it, the dual nature of law and equity is essentially 
based on the differing needs of a multi-faceted society (agricultural, 
industrial, business, financial, social, political, etc.) which somewhat 
reflects the multi-faceted (physical, spiritual, mental, moral, emotional, 
social, etc.) nature of man. Equity, as a separate system or body of law, 
was conceived and developed based **624* on the wisdom and experience of 
many centuries. It should not be altered except knowingly and deliberately 
by those with authority and a full knowledge of the particular reasons for 
the origin of each of its many maxims, principles and practices and a clear 
vision of the effect of any change. The panel opinion in this case, does not 
meet those requirements. 

FN9.<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darre n%20Michaels/Hutchens%20v.%20Maxicen
the University of Florida College of Law, Equity Jurisprudence was 
taught 
as a 5 credit course in 1947-48, a 3 credit course in 1948-49, and a 2 
credit course from 1949 through 1960. 

FN10.<file:///F:/Documents%20and%20Settings/User1/My%20Documents/_Law2/Darr en%20Michaels/Hutchens%20v.%20Maxice
the preface to the first edition of his text book on Equity 
Jurisprudence 
in May, 1881, Professor John Norton Pomeroy was greatly concerned about the 
disastrous consequences of the then tendency to abolish the external 
distinctions between actions at law and actions in equity, the union of 
legal and equitable rights and remedies in one proceeding and the 
substitution of legal and equitable methods. Perhaps history will note that 
the rise and decline of Equity as a separate and distinct body of 
substantive law in Florida as parallelling the frequency with which reported 
Florida cases referred to Pomeroy's Equity Jurisprudence over the decades, 
which is illustrated as follows: 1890's-1; 1900's-3; 1910's-5; 1920's-11; 
1930's-40; 1940's-28; 1950's-24; 1960's-23; 1970's-9; 1980's-4 to date, with 
this opinion being the fifth. Similarly, cases citing Story, Commentaries on 
Equity Jurisprudence (1884) are as follows: 1900's-1; 1910's-0; 1920's-1; 
1930's-5; 1940's-2; 1950's-2; 1960's-0; 1970's-2; 1980's-1 to date with this 
opinion being the second. 

COBB, J., concurs. 

Fla.App. 5 Dist.,1988. 

Hutchens v. Maxicenters, U.S.A. 

541 So.2d 618, 13 Fla. L. Weekly 986, 14 Fla. L. Weekly 931 

*Additional References* 

*Cases on Federal Procedure together with judicial code, equity rules, forms 
and questionnaire<http://books.google.com/books?id=8nQaAAAAYAAJ&ots=LIMcmqDJBf&dq=wheat...> 

by Carl C. Wheaton.* 

-- 

***************************************************************** 
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2460 Persian Drive #70 - Clearwater, FL 33763 
Donate <http://bobhurt.com/lawdonation.htm> to my Law Studies 
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