Jackson v. Haisley

35 Fla. 587

Opinion

Liddon, J.:

The case below was an action of ejectment brought by appellants against appellees. The verdict and judgment were for the defendants. The property in dispute were certain lots in the town of Ocala.

Among other assignments of ei’ror is one based upon the exclusion from the jury of a certified copy, from the records of deeds, of a deed conveying the premises-in dispute, made by one James Child to Horace Merry. Before offering the copy from the record the plaintiffs made proof that the original was not in their posses sion, and that search had been made for the same-where it was most likely to be found, but that sucha search was ineffectual. As the objection upon which the paper was excluded relates entirely to the proof' of its execution before the recording officer, it is¡ only necessary to set out in this opinion the in testimonium clause, the attestation and the affidavit, which were as follows: “In witness thereof the said party of the first part hath hereunto set his hand and seal the day and date above written.

J. Child. (Seal.)

Signed, sealed and delivered in presence of W. S. Olmstead,

John I. Livingston.

County op Marion, )

State op Florida. )

Before me, John L. Branch, Clerk of the Circuit-Court of Marion county, personally appeared Wood-bridge S. Olmstead, who on his- oath says that he saw James Child sign the above deed, and that he acknowledged that he did so for the purpose therein mentioned; and he, the said W. S. Olmstead, and John Livingston, signed the same as witnesses.

W. S. Olmstead.

Sworn to before me this the 4th day of January, 184S

John L. Branch, Clerk.”

The same John L. Branch who took the proof wasi the clerk who recorded the deed, and the copy offered! in evidence was duly certified from the official record: of deeds. The objection urged is, that the affidavit was-, insufficient to authorize the recording of the deed, because it proved only a signing, and not the sealing and delivery, or the full execution thereof. By reference-to the foregoing portion of the deed, it appears by the attestation clause thereof that the same was ‘ ‘ signed v sealed and delivered” in the presence of two witnesses, although the witness making affidavit for the purpose <of having the deed recorded only swore that he saw ithe grantor “sign” the same, and “acknowledged that ?he did so for the purpose therein mentioned,” and that affiant and the other subscribing witness “signed the same as witnesses.” Construing this affidavit with the attestation clause of the deed itself, it sufficiently shows that the deed was not only signed, but sealed and delivered. The affidavit of proof sufficiently refers to the deed; and both should be construed together in determining the sufficiency of the proof of execution. It is the policy of the law not to nullify such records wherever substance is found, and obvious clerical errors and technical omissions should be disregarded. It is sufficient if there be a substantial compliance with the statute. The subject has been fully discussed in this State, and further discussion is unnecessary. Einstein’s Sons vs. Shouse, 24 Fla. 490, 5 South. Rep. 380; Sumner vs. Mitchell, 29 Fla. 179, 10 South. Rep. 562; Cleland vs. Long, 34 Fla. 353, 16 South. Rep. 272. The court erred in refusing to permit the record to be read in evidence to the jury.

.Several assignments of error are predicated upon ¿rulings of the court below excluding from the jury ¿two other deeds by which the appellants (plaintiffs below) sought to establish a chain of title from Horace Merry, the grantee in the deed above mentioned. They are not argued by counsel for appellants. Adhering to the rule established and frequently asserted here, we consider these assignments as abandoned. We have not considered them except so far as to determine whether upon the whole case the exclusion of the Reed of Child to Merry was harmful or harmless error, and we indicate no further opinion as to whether the assignments of error under consideration are or are not well taken, except that the error in excluding the deed of Child to Merry, upon a view of the whole case, was not harmless error.

The next error complained of is the ruling of the Circuit Court striking out the testimony of M. L. Payne, E. W. Agnew and Roderick Long, witnesses for the plaintiffs. Among other things, the witness Payne testified: “ I considered that I was in possession of the property, as agent foy Carn, before Haisley (one of the defendants) enclosed it in 1888. E. W. Agnew & Co. were in possession of it until Mr. Haisley took it from them in October, 1883. I placed E. W. Agnew in possession, representing D. H. Carn and the plaintiff Elizabeth Jackson. They were both interested in the property. * * * I was acting jointly for both of them. * * * Agnew & Co. commenced using the property as a lumber-yard early in 1883, and were so using it and had hauled a good big pile of lumber there to commence building the livery stable, when in October, 1883, Mr. Haisley took possession and built the fence. * * * I put Agnew in possession as agent of Carn, for benefit of Carn and plaintiff Jackson.” E. W. Agnew testified as follows: (T have known the lots in suit since 1865. E. W. Agnew & Co. bought them, as we thought, and in October, 1883, commenced to build a stable on the lots. We used them whenever we wanted to. Before we went into possession no one was ever in possession. I went over these lots five or six times a day, going to and from my gin-house. Some two or three months before I commenced to build on them, I made arrangements to use them as a lumber yard. I inquired as to who owned them, and ascertained that Mr. Payne was agent for them. On authority from Mr. Payne I took possession of the property. I never paid for it. I had a deed. I told Mr. Payne I would not pay until the title was settled. I never heard any question about the title until I commenced to build on the lots. I could not find out who claimed them until Mr. Payne told me he was agent. I never finished building the stable. I sent a man down with lumber, and Mr. Haisley forbade him to come on the property, and threatened to shoot the man if he did come. I used the lots as a lumber-yard before this — two or three months before Mr. Haisley ran the driver off. I think we used the lots for piling lumber on while building the hotel, some two or three months before this. I bought it in July or August, 1888, and continued in possession until Haisley forcibly drove my driver away. This was in October, 1883. I sent wagon down with lumber, and Mr. Haisley had a pistol in his hand and said he would shoot the driver if he came on the lots. Up to that time I used the lots as a lumber-yard and for any other purpose I wanted to. I was authorized to go in possession by Mr. Payne, as the agent of Mr. D. H. Carn. I did not pay for the land because this trouble came up. The deed was from Carn. Mr. Haisley built the first fence. It was on Saturday night after he had run off the driver. It was either Saturday or Sunday night. I went by there about sun-down and there was no fence. Next morning it was there. It was built between sunset and sunrise, I think on Saturday night. He forcibly drove off my driver and myself. Before I went into possession the lots were used as a public water-closet.” On cross-examination the witness testified: “The lumber was not put on the lots after getting Haisley’s consent; said nothing to Haisley about-it. I don’t think the workmen had commenced work; had hauled several loads, but don’t know how many. The lumber was put on lot No. 4, but can’t say how much of the lot was covered by it; it was before the commencement of the suit of Carn vs. Haisley. Elizabeth: Jackson had some interest in the lots; I did not know what it was. M. L. Payne gave me possession.” The witness Long testified, among other things, as follows: “I commenced building the fence for Mr. Haisley about 3£ o’clock on Monday morning. About one-o’clock on Saturday the contract was made. Mr. Haisley hired four or five hands; finished the fence about eight o’ clock Monday morning. Mr. Haisley was there with his gun.” On cross-examination the witness testified: “I put fence around lots 3 and 4, of block 36. Nobody was in possession until Mr. Haisley had fence built. Agnew had put lumber on it while building hotel. I cut some fire-wood for myself under Mr. Haisley in 1882. I looked after these lots for Mr. Haisley.” The court below excluded all of this testimony, motion being made therefor, upon thé-ground that “the-same did not prove or tend to prove possession upon the part of the plaintiffs.” It needs no elaborate demonstration or any analysis of the testimony to show that the Circuit Judge was mistaken upon this point, and that the testimony does at least “tend to prove-possession upon the part of the plaintiffs.” We think it not only tends to prove a possession upon the part of the plaintiffs, but also tends to prove that such possession was prior to that of the defendants. The evidence should not have been taken from the consideration of the jury. It is claimed that this evidence of possession not being connected with a paper title — -the deeds showing title in the plaintiff, Mrs. Jackson, having been stricken out — was not sufficient to have changed the verdict, because it did not show such possession for the full period of seven years, as required by the statute of limitations of this State. This statute was in tended to confer a title by prescription, where possession is held for the time and in the manner required by it, against all persons claiming title, including the true owner of the premises. It was not intended that .such a title must be shown in a suit brought by one having a prior possession against a bare trespasser who enters upon the land without any right or claim of title whatever. In this case the evidence upon the part of the plaintiffs was so stricken out, that he could not obtain a verdict, and defendants did not need to, and did not, offer any evidence whatever of title in themselves. So far as appears from the evidence of the plaintiffs, the defendant W. H. Haisley was an intruder, sl bare naked trespasser, forcibly taking possession of property and maintaining such possession by violence and the display of deadly weapons. Upon the question of a recovery in an action of ejectment by right of prior possession, this court has said: “The rule as to rights resulting from prior possession we think is correctly stated by the Court of Appeals of Virginia, when it holds that where a party in peaceable possession of land is entered upon and ousted by one not having title to or authority to enter upon the land, the party ousted may recover in ejectment upon his possession only; and his right to recover can not be resisted by showing that there is or may -be an outstanding title in another, but only by showing that the defendant himself either has title or authority to enter under the title. Tapscott vs. Cobbs, 11 Gratt., 172. In the English cases of Read and Morpeth vs. Erington, Croke Eliz., 321, Bateman vs. Allen, Ibid, 437, and Allen vs. Rivington, 2 Saund., 111, it was shown that the plaintiff was in possession, and that the defendant entered without title or authority, and the court held that it was not necessary to decide upon the title of the plaintiff and gave judgment for him. See also 14 Eng. Com. Law, 41. This doctrine seems to be questioned in some of the States of the Union, among which are Delaware, North Carolina, South Carolina and Indiana, but the decisions in Virginia, Georgia, Kentucky, California, New Jersey, Connecticut, Vermont, Ohio, Pennsylvania, Maryland and Texas sustain it, and we think the rule eminently calculated to preserve peace in communities where there are vacant lands of which parties may take possession. For if the last possessor, even if by violence, is to be sustained, there certainly would be personal conflict. The possession which the law contemplates, in a case where plaintiff has no title, however, is an actual possession. Some of the authorities say ‘an open, notorious, exclusive and actual possession.’ ” Seymour and Simpson vs. Creswell, 18 Fla., 29.

The doctrine, that a plaintiff in ejectment may recover on proof of prior possession against one not having a better right, or an intruder, has also been upheld in this State, in Ashmead vs. Wilson, 22 Fla., 255, text 259; Simmons vs. Spratt, 20 Fla., 495. See also 6 Am. & Eng. Ency. of Law, 227, text and notes. In determining this point we do not determine the probative force or effect of the excluded testimony. That was the province of the jury. We only say that it tends to show a prior possession in the plaintiff, Mrs. Jackson, to the premises in dispute.

The court charged the jury as follows: “In this case it is necessary for the plaintiffs to show by competent evidence an unbroken chain of title from the government down to the plaintiffs, in order to recover the premises.” The defendant offering no proof of title beyond a mere naked possession, this charge was clearly erroneous, both as applied to the facts of this case and as a general proposition of law. ‘ ‘ The rule, that a plaintiff must recover upon the strength of his own title, and not upon the weakness of his adversary’s title, is not to be understood as requiring that he shall be compelled in the first instance to trace his title back to the original grantor, but only that he shall exhibit so much as will put the defendant to support of his possession by a title, superior to one of mere naked possession.” Hartley vs. Ferrell, 9 Fla., 374.

For the errors herein mentioned, the judgment of the Circuit Court is reversed and a new trial granted.