OPINION FOOTNOTES
*fn1 The 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), 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 Fla.R.Civ.P. 1.110(b).

*fn3 See Fla.R.Civ.P. 1.570(c).

*fn4 1 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, 91 Fla. 709, 109 So. 677 (1926).
*fn5 1 Pomeroy, Equity Jurisprudence, Sec. I, Divisions Equity Jurisdiction as Exclusive, Concurrent and Auxiliary, § 136, p. 186 (5th Ed., Symons, 1941).
*fn6 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 1 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).
*fn8 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.
*fn9 At 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 In 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 paralleling 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.

So, there you have the entire case opinion which supports the fact that equity is the soul of justice. Equity is its heart. It is the goodness that justice works for. It is the goal for which all good men and women strive. It is the sum and substance of due process and gives wisdom to the Rule of Law.

Black's Law Dictionary (2nd Edition, 1910) puts it best; "Equity is the spirit and habit of fairness, justness, and right-dealing which should regulate the interactions of men and women -- the rule of doing unto others as we desire them to do to us. As expressed by Justinian, equity is 'to live honestly, to harm nobody, and to render to everyone what's due.' It is therefore the synonym of natural right or justice. It is grounded in precepts of the conscience, not in any sanction of written law." Equity derives from the same root word as "equal" and thus is the guide that always points our legal systems toward that path whereon all stand before the law and its courts without preference. Each of us is entitled to our day in court, entitled to be heard, entitled to receive every protection the state affords to others. This is what equity demands. Equity appears where love and wisdom dispense justice together.

It should be observed that modern legal action in an equity court does not abolish the distinctions between law and equity. The differences between of the two classes of remedies, legal and equitable, are clearly and widely recognized. Such recognition is essential to the proper administration of justice in an orderly manner and the preservation of the substantial rights of litigants, not because of any necessary difference in the forms of pleadings and of actions, but because of the substantial difference between legal and equitable rights. Thus, in a state such as Florida with a unified court system, where common law judges also act as judges in equity, their equitable powers and jurisdiction are nevertheless limited to those powers, jurisdiction and duties granted by law.

It is fundamental that in order for a court of equity to obtain jurisdiction of a case, there must be properly plead grounds for equitable relief, otherwise, the legal action is not subject to equitable cognizance. Courts of equity act on equitable causes of action by the administration of equitable remedies, therefore, equities must be alleged and proved in order that the court may have jurisdiction of a suit. In determining a dispute as to whether the court has jurisdiction, the primary consideration is whether the cause is in its nature a legal or equitable one. Generally, if the cause of action is equitable in character, even in part, and equity jurisdiction once attaches, full and complete adjustment of the rights of all parties will be properly made in the suit. Where grounds exist calling for the exercise of the equitable power of a court to furnish a remedy, the court will not hesitate to act even though the question presented may be a novel one.

Historically, the test of the equity jurisdiction of a court in any given case was that the suitor could not get relief or could not get adequate relief in a court of common law. It is common knowledge that the test of equity jurisdiction of a court is the absence of a legal remedy. Subject to certain qualifications, if a judicially cognizable right exists, and no other adequate remedy is available, equity has jurisdiction and will grant appropriate relief, unless prevented by some supervening principle, and subject, of course, to the recognition of all equitable defenses. The availability of an adequate legal remedy is a threshold determination. The plaintiff must affirmatively show a lack of an adequate remedy at law on the face of the pleading and from the evidence. The mere existence of a possible remedy at law is not sufficient to warrant the denial of equitable relief.

The next time you speak to legal counsel about your property rights and the protection of your real property, ask them extensively about their knowledge of equity jurisprudence, how it may affect your situation or your case and the protections afforded to you by law and equity. You may be surprised at the multitude of answers or responses that you may receive. To prevail over a cause of action in regards to homestead and property rights, you may just have to have your attorney plead your case ‘in equity’. May all of us purpose in our hearts to work tirelessly for that day when equity is more perfectly obeyed in all of our courts, and justice is truly secured for the benefit of all.