Adams v. Fryer

• Court: Florida Supreme Court
• Writing for the Court: TAYLOR, J.
• Citation: Adams v. Fryer, 59 Fla. 112, 52 So. 611 (Fla. 1910)
• Decision Date: 20 May 1910
• Parties: ADAMS v. FRYER et al.

52 So. 611

59 Fla. 112

ADAMS v. FRYER et al.

Florida Supreme Court, Division B.

May 20, 1910

Error to Circuit Court, Liberty County; J. W. Malone, Judge.

Action by A. B. Adams against R. D. Fryer and J. M. Spence. Judgment for defendants, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where a party, claiming under a tax deed that is admittedly void bases his right to the land involved upon four years' actual adverse possession thereof under the provisions of section 591, Gen. St. 1906, and the only proof of such possession is that he stretched around the entire tract containing upwards of 2,500 acres, one barbed wire nailed to trees and saplings and a few posts at a height of about four feet from the ground, and under this barbed wire two strands of small, smooth telephone wire, and it was proved without contradiction that cattle of the neighborhood roamed through and over it at will, and that the land was wild and unimproved, held, that this was not such a substantial inclosure as gave to the party adverse possession under our statute, and that under the proofs an affirmative charge should have been given to the jury to find for the plaintiff.

Where a party claims title to land by adverse possession, he should show clearly, definitely, and with accuracy that he continuously maintained a legally recognized possession for the full statutory period necessary to bar the former owner.

COUNSEL Blount & Blount & Carter and E. T. Davis, for plaintiff in error.

Reeves & Watson, for defendants in error.

OPINION

TAYLOR J.

The plaintiff in error, as plaintiff below, brought his action of ejectment against the defendants in error in the circuit court of Liberty county for the recovery of sections 1, 2, 11, and 12 in township 5 south, in range 8 west, containing 2,568 acres. There was a verdict and judgment in favor of the defendants below, and for its review the plaintiff below comes here by writ of error.

At the trial the plaintiff requested the court to give an affirmative charge to the jury to find in his favor, which instruction was refused. Such refusal was duly excepted to and is assigned as error.

This instruction on the testimony in the case should have been given, and the court below erred in its refusal to give it. The plaintiff below exhibited a complete chain of title in himself, running back to the Spanish government, and showed that the land was wild forest unoccupied and unimproved. The defendants claimed under a tax title that was admitted to be void, but claimed that they had been in the actual possession of said lands for four years prior to the institution of the plaintiff's suit invoking the provision of section 591, Gen. St. 1906, which provides as follows: 'When the purchaser of land at a tax sale goes into actual possession of such land, no suit for the recovery of the possession thereof shall be brought by the former owner or claimant, his heirs or assigns, or his or their legal representatives for the recovery of the...