Carr v. Lesley

74 So. 207, 73 Fla. 233

Opinion

Per Curiam.

Theodore Lesley in January, 1915,' filed his bill in the Circuit Court for Hillsborough County against the appellants, alleging that he was the owner of a certain tract of ten acres of land in Hillsborough County, which whs described; that in April, 1901, his father, Captain John T. Lesley, as agent for the complainant purchased the land from E. O. Morgan paying him therefor the sum of foür hundred dollars;. that in making the sale E. O. Morgan acted as agent for the appellants., and promised to have them execute a deed of conveyance to the land and deliver the same to the complainant; that complainant took possession of the lands in April, 1901, enclosed the tract with a substantial fence and used the land for years as a pasture, and maintained the fence in good condition; that he has held himself out as the owner of the property continuously ever since, and claimed it adversely to all, alleging that his possession had ripened'into title by adverse possession. The complainant alleg'ecl in the bill that the defendants, who are the appellants here, had some claim upon the land “the extent of which” was alleged to be unknown, but that the same was a cloud upon his title. The. prayer was that complainant’s title to the land be quieted, that defendants be required tc execute a deed conveying the lands to complainant, or in default thereof, that complainant be declared to have the title to the lands, and for general relief.

A demurrer to the bill was interposed in behalf of Mrs. Carr, which was overruled, and she filed a sworn answer denying the material allegations of the bill. The other two- defendants also answered the bill, but not under oath. The complainant filed a general replication and the cause came on to be heard upon the pleading's and testimony.-

- The Chancellor decreed the title to be in complainant, •that the defendants be barred and precluded from any right or title or interest in the property. This decree rested upon the.finding by the Chancellor that complainant had acquired title to the property described in the bill by adverse possession, under the provisions of Section 1722 General Statutes of Florida, 1906.

Within five days after this decree was- rendered, the defendants below filed their petition for a rehearing upon the ground that the testimony failed to show such possession of the premises by the complainant as was sufficient to ripen into title by adverse possession, because the com-. plainant and the defendants were shown by the testimony to own the property jointly between them. In substance, that the property was owned in common by the complainant and defendants, and the testimony failed to show an ouster by complainant of his co-tenants. The petition was overruled and an appeal taken from the final decree and the order overruling the petition for rehearing.

We have arrived at the conclusion that the decree was ■erroneous, and the petition for a rehearing should not have been denied. AVe are mindful of what this court has said in many cases to the effect that the findings of the Chancellor on questions of fact should not be reversed unless the evidence clearly shows that in such findings the Chancellor erred. See Mock v. Thompson, 58 Fla. 477, 50 South. Rep. 673; Lucas v. Wade, 43 Fla. 419, 31 South. Rep. 231; Sarasota Ice, Fish & Power Co. v. Lyle & Co., 58 Fla. 517, 50 South. Rep. 993 But these cases make a distinction 'between the conclusions and findings of a Chancellor where the testimony is not taken before him and where it is, holding that in the former case the findings are not entitled to the same weight as they are in the latter. Nevertheless this court holds that in either case the finding's of the Chancellor will not be disturbed by an appellate court unless they are shown clearly to be erroneous.

We think that the facts .in this case show that Mr. Theodore Lesley’s possession of the land described was that of a cotenant with the complainants; that when the negotiations for the purchase of the land were being-carried on by Captain J. T. Lesley, the complainant’s father, acting- as complainant’s’ agent, and the father of the defendants, Mr. E. O. Morgan, Captain Lesley knew that the title to the land was in the four daughters of Mr. Morgan. Mr. Morgan and Captain Lesley had some business dealings together which involved the handling- of cattle and the use of the land in dispute, and some lands adjacent thereto, as a pasture for their cattle. > The pasture was surrounded by a substantial enclosure, which took in the particular ten acres in dispute. Mrs. Lizzie Jackson owned this ten acre tract and complained to Mr. Morgan and Captain Lesley about putting a fence on her lands. She instituted suit against them for damages. They both called upon her, settled their difficulties by agreeing- to purchase the land from Mrs. Jackson, Captain Lesley himself writing to her and instructing that the deed be made to the four daughters of Mr. Morgan. The deed was executed according- to those instructions on August 24, 1900. The grantees named were Jennie K. Lesley, Emma Morgan, F. H. Alderman and Ida V. Carr, the four daughters of E. O. Morgan—Mrs.; Jennie K. Lesley being the wife of E. L. Lesley, a son of Captain J. T. Lesley and'brother to complainant. Now in 1901, Captain Lesley desiring to purchase the land, requested his son E. L. Lesley to ascertain from Mr. Morgan if he would sell and at what price. Mr. Morgan said he would take five hundred dollars for it, one hundred of which Mr. E. L. Lesley might retain. So Mr. Lesley wrote to his father what Mr. Morgan had said, and that if the Captain would deposit four hundred dollars in a bank in Tampa to Mr. Morgan’s credit, E. L. Lesley would release his claim to the one hundred dollars. This was done and a deed was thereupon drawn to be signed by the four daughters of Mr. Morgan named as the grantees in the deed from Mrs. Jackson. This deed which was to1 have been executed by the four daughters, named Theodore Lesley as grantee. Mr. Morgan told Mr. E. L. Lesley, who was acting for his father, that the daughters would not sign the deed; “that he could not do anything with the girls; could not make them sign the deed.” For several years, according to the testimony of the complainant, he has had a quitrdaim deed to the land from his brother and the latter’s wife who was one of the grantees in the deed from Mrs. Jackson. In the testimony of Mr. E. L. Lesley, the following questions were propounded, and answers given: Q. “Was it your understanding that your father, Captain Lesley, bought this property, that he bought it for Theodore Lesley?” A. “The deed was made to- Theodore Lesley.” Q. “Theodore Lesley your brother?” A. “Yes.” Q. “You say that the deed which was sent to you and which you and your father signed conveyed the property to Theodore Lesley?” A. “Yes sir.” Q.< “Did you ever have any conversation with Mr. Morgan about it, after you found out the deed had not been signed?” A. “I was down at his place sometime after my father wrote me and asked me'about the deed, and I asked Mr. Morgan if the deed had ever been signed and returned; he said the girls would not sign it, but if he could ever get them all together and get Ida V. Carr over 'there he would get them to sign it.” This testimony shows that the deed which was prepared and sent to E. L. Lesley, was intended to be executed by the four daughters, one of whom was E. L. Lesley’s wife. • It seems that he and his wife signed. The word “father” is evidently a misprint, as Captain Lesley was not a party to the deed. However it is perfectly clear from the testimony, as well as the allegations of the bill, that the complainant took possession of the .property after the negotiations with E. O. Morgan and a knowledge that it was held in common by the latter’s four daughters. A one-fourth interest was actually acquired by the complainant either in 1901, when his father sent the deed to.E. L. Lesley to be executed by him and his wife and the other three daughters of E. O. Morgan, or afterwards when the quit-claim was obtained. There is nothing whatever in the evidence to show that the complainant’s possession was actually hostile to the defendants; in fact, he had no other purpose seemingly than to claim title under them, and not in hostility to them.

This court has many times said in discussing the law of adverse possession as applied to one who claims title against a cotenant, that “the possession of one tenant in common is prima facie presumed to be the possession of all, and such possession does not become adverse to the other cotenants unless they are actually ousted, or unless the possession of the one is exclusive of and openly hostile to his cotenant, and the character of such possession is brought home to them by actual notice of such adverse holding, or that such possession is so open and notorious in its' hostility to, and exclusiveness of, them as to- put them on notice of its adverse character.” See Gracy v. Fielding, 71 Fla. 1, 70 South. Rep. 625. See also Anderson v. Northrop, 30 Fla. 612, 12 South. Rep. 318. The evidence shows that the 'complainant knew the address-or place of residence of his contenants; they lived within the State in cities not far distant, and yet he did not attempt to bring to them actual notice of his adverse claim or possession, if indeed his possession was adverse in fact. So far as they knew he was merely using the place for the purpose to which it had been used when their father and complainant’s father were in business together, that the taxes were paid by him as compensation for such use. The evidence does not show that there had been brought home to them a knowledge that complainant claimed the land in open hostility to their title seven years before the institution of the suit.

We think, therefore, that the decree should be reversed and the bill dismissed, and it is so ordered.

Browne, C. J., and Taylor, Shackleford, Whitfield and Ellis, JJ., concur.