Boley v. McMillan

63 So. 703, 66 Fla. 159
CourtSupreme Court of Florida
DecidedNovember 18, 1913
StatusPublished
Cited by4 cases

This text of 63 So. 703 (Boley v. McMillan) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boley v. McMillan, 63 So. 703, 66 Fla. 159 (Fla. 1913).

Opinion

Shackleford, C. J.

A. M. McMillan instituted an action of ejectment against Louis Boley, M. C. Boley and W. H. Kilbee to recover tbe possession of. tbe following described real estate and also mesne profits: :

“Beginning at tbe southwest corner of the A. Johnson purchase of 25 acres in the Dominges Grant, Section 34, Township 2 South, Range 30 West, in Escambia County, Florida, thence running south on a line with the west boundary of the said Johnson Purchase 587.5 feet, thence west to the northeast corner of the Prieto Grant, thence on the west boundary of the Dominges Grant to a point opposite the northwest corner of the George Main Purchase in said Grant, and thence east to the said northwest corner of said George Main Purchase, thence south on a line with the west boundary of the said George Main and A. Johnson purchases to the point of beginning; said property otherwise known as Lot 20, and the west half of Lot 24, as per subdivision of the Dominges Grant, in said Section 34, Township 2, South of Range 30 West, containing about 70 acres, to which said plaintiffs claim title, to-wit, an undivided one-half interest therein in fee simple.”

The defendants filed a plea of not guilty and a trial was had before a jury, which resulted in a verdict and judgment in favor of the plaintiff. The plaintiff did not undertake to trace his title back to the Government, but introduced a tax deed from the State of Florida to C. C. Yonge, bearing date the 20th day of June, 1875, in which the entire Domingez Grant, of which the real estate in [161]*161controversy is embraced, was conveyed. This tax deed, by agreement of the respective counsel was “admitted only for the purpose of showing color of title.” Having unsuccessfully attempted, at an earlier stage of the trial, to introduce in evidence a deed from O. O. Yonge to Wm. T. Waters and James Waters, dated the 14th day of July, 1884, the plaintiff again offered such deed in evidence. Thereupon the bill of exceptions shows the following proceedings:

“Defendants objected to the admission of said deed on the grounds, first, that no title had ..been shown in the grantor; second, there was no evidence that the grantor was in possession; third, that the description in the deed is void for uncertainty; fourth,. that the deed does not describe the property sued for; and fifth, that it is immaterial and irrelevant to the issues in this case.

But the court overruled said objections, and admitted said deed in evidence and same was read to the jury, to which said ruling the defendants excepted.”

The description of the land embraced in such deed . reads as follows:

“Beginning at the Sw corner of the A. Johnson Purchase of 25 acres; thence running South on a line with the west boundary of the said Johnson Purchase 587.5 feet; thence West to NE corner of the Prieto Grant; thence on the west boundary of the Dominges Tract to a point opposite the NW corner of the George Main purchase; thence south on a line with the west boundary of the George Main and A. Johnson purchase to the point of beginning, situated in the County of Escambia, State of Florida.”

The plaintiff also offered in evidence a deed from the heirs of James Waters, deceased to Rebecca C. Waters, [162]*162dated the 15th of March 1899, in which the same description of the land appears, to the introduction of which the defendants interposed the same grounds of objection, which was likewise overruled and an exception noted to the ruling. The plaintiff also introduced in evidence a deed from the heirs of Rebecca Waters, deceased, to Raymond W. Waters, dated the 10th day of May, 1902, and a deed from Raymond W. Waters to the plaintiff, dated the 28th day of November, 1903, in the first of which deeds the land in controversy was described as “half undivided interest in lot twenty, and one half undivided interest in west half of lot twenty-four * * * in the Dominguez Grant, Section 34, Tp. 2 South. Range 30 West,” and in the second of such deeds as “One-half undivided interest in lot 20 and one-half undivided interest in west half of lot 24, as per subdivision of the Dominguez Grant, Sec. 34, Tp. 2 South, Range 30 West, plan of which is hereto attached.” The defendants objected to the introduction of each of these deeds on the ground “that no identification of the lots had been made, that no possession has been shown; that there has been no possession of any of the parties since 1900; that there is no adverse holding that would relate back to the possession as testified to by the witness Waters; that there was never any possession under the deeds.” These objections were overruled and an exception was taken to each ruling. It is admitted by the plaintiff in his brief that, “Long subsequent to the execution of the deeds in which the description is claimed to be defective, the Dominguez Grant was platted, and the property conveyed by those deeds was designated on the plats as lot 20 and part of 24, but the deeds of which' complaint is made make no reference to the lots.” The plaintiff relied [163]*163upon adverse possession of the land in controversy under color of title by his predecessors in title for the requisite statutory period, and contends here that this claim is established by the evidence.

The defendants have assigned eight errors, but they are not all insisted upon or argued in detail. In fact, only one point is presented for determination, though it is raised by several assignments. As is admitted by the defendants in their brief, the sufficiency of the description of the land in the deeds from Yonge to Waters and from the heirs of James Waters, deceased, to Eebecca Waters, “is the real question in controversy.” We have already copied this description, but for the sake of convenience we copy it again:

“Beginning at the Sw corner of the A. Johnson purchase of 25 acres; thence running south on a line with the west boundary of the said Johnson purchase 587.5 feet; thence west to the NE corner of the Prieto Grant; thence on the west boundary of the Dominges Tract to a point opposite the NW corner of the George Main purchase; thence south on a line with the west boundary of the George Main and A. Johnson purchase to the point of beginning, situated in the County of Escambia, State of Florida.”

It is obvious that the description is incomplete and, taken literally, just as it stands, does not enclose any land whatever. It would seem to be admitted by the respective parties that the first three calls of the description are definite and capable of ascertainment, but it is contended by the defendants the fourth call fails to connect. This also is practically conceded by the plaintiff, but he contends that “the court can see at a glance that the fourth call is intended in truth for the fifth and that [164]*164by inadvertance the language of the fourth call 'from thence’ (that is from the point on the west boundary of the Dominguez Grant opposite the MW corner of the George Main purchase) 'to the MW corner of the George Main purchase’ was omitted.” He then proceeds to add that “by reversing the calls of the deed,” which, he contends, is sanctioned by the authorities which he cites, “the description will read as follows:”

“Begin at S W corner of the A. Johnson purchase thence north on a line with the west boundary of the A. Johnson and George Main purchase to a point on the west boundary of the Dominguez Grant opposite the MW corner of the Geo.

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Bluebook (online)
63 So. 703, 66 Fla. 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boley-v-mcmillan-fla-1913.