Ansley v. Graham

• Court: Florida Supreme Court
• Writing for the Court: BROWNE, C.J.
• Citation: Ansley v. Graham, 73 Fla. 388, 74 So. 505 (Fla. 1917)
• Decision Date: 20 February 1917
• Parties: ANSLEY et al. v. GRAHAM et al.

74 So. 505

73 Fla. 388

ANSLEY et al. v. GRAHAM et al.

Florida Supreme Court

February 20, 1917

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Ejectment by J. C. Ansley and others against Dora Graham and others. Plaintiffs' motion for nonsuit granted, and they bring error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

Where the state and county are omitted from the description of the lands conveyed in a deed, but the lands are so described that they can be located by a surveyor, the fact that the grantor and grantee are described as being of a certain county and state, and the deed is acknowledged and recorded in that county, in the absence of anything to the contrary, the presumption is that the land is situated in the county and state where all the parties reside, and where the deed was executed, acknowledged, and recorded.

If a surveyor, by applying the rules of surveying, can locate the land, the description is sufficient; and a deed will be sustained if it is possible to ascertain and identity the land intended to be conveyed.

Where the evident intention of a grantor can be carried into effect by construing the word 'her,' before the word 'heirs,' in the habendum of a deed, to be intended for 'their,' such construction will be followed rather than one which defeats the clearly expressed intention of the grantor.

COUNSEL Axtell & Rinehart, of Jacksonville, for plaintiffs in error.

D. M Gornto and Carter & McCollum, all of Jacksonville, for defendants in error.

OPINION

BROWNE C.J.

On August 26, 1915, plaintiffs in error, who were the plaintiffs below, brought suit in ejectment against the defendants in error, in the circuit court of Duval county. A plea of not guilty was filed, and on the trial the plaintiffs offered in evidence the deed under which they claimed title, as follows:

'This indenture, made this 17th day of October, A. D. 1901 between J. C. Greeley, as trustee for Mellen C. Greeley, with power to sell, of the county of Duval, in the state of Florida, party of the first part, and Emma Tallock, during her natural life, then Mattie Ansley and her children, of the county of Duval, in the state of Florida, party of the second part,

'Witnesseth, that the said party of the first part, for and in consideration of the sum of one hundred and sixty dollars, to him paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained and sold to the said party of the second part, her heirs and assigns forever, the following described land, to wit:

'Part of the Sand Hills tract, also being part of the Willie Brown tract, begin in William Ballard east line 206 feet north of the base line, thence continue north in the said Ballard line 588 feet, thence easterly at right angles with first line 330 feet, thence southerly parallel with first line 588 feet, thence westerly 330 feet to the place of beginning, containing 4 acres.

'And the said party of the first part does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever.

'In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written.

'J. C. Greeley, [Seal.]

'As Trustee for Mellen C. Greeley.

'Signed, sealed and delivered in presence of:

'Carrie Harrison.

'Allan Greeley.

'State of Florida, County of Duval.

'I hereby certify, that on this 17th day of October, A. D. 1901, before me, Allan Greeley, notary public, personally appeared J. C. Greeley, as trustee for Mellen C. Greeley, to me known to be the person described in and who executed the foregoing conveyance to E. Tallock, and acknowledged the execution thereof to be his free act and deed for the uses and purposes therein mentioned.

'Witness my signature and official seal at Jacksonville, in the county of Duval and state of Florida, the day and year last mentioned.

'[Notarial Seal.] Allan Greeley,

'Notary Public, State of Fla. at Large

'I certify that on this 19th day of October 1901, I recorded the foregoing instrument in the public records of Duval county, Florida.

'P. D. Cassidey, Clerk Circuit Court,

'[Court Seal.] By E. C. Clark, D. C.'

Whereupon the defendants objected to its introduction on the following grounds:

'(1) It appears to have been executed under a power, and the power is not first shown.

'(2) The deed is vague and indefinite in describing the land and does not furnish the means of identifying the tract intended to be conveyed, and is therefore void for uncertainty in description.

'(3) The deed is vague and uncertain as to the person taking the grant, and it is impossible to determine therefrom who takes what estate, if any, is granted.

'(4) The granting clause is repugnant to the introductory clause, and therefore the deed is void for repugnancy.

'(5) The fee-simple estate is granted to Emma Tallock and her heirs, and the plaintiffs have not shown that they derived title under Emma Tallock.

'(6) The fee-simple estate is granted to Emma Tallock and Mattie Ansley and her children.

'(7) The fee-simple title is granted to Emma Tallock and Mattie Ansley and her children, and thus is created an estate in contenacy. The plaintiffs, as tenants in common, have not shown that ejectment lies as against their cotenants in this cause.'

To these objections the court made the following order:

'I sustain the objections of the defendants to the introduction of this deed. I have construed the deed in the particular instance. Had there only been the first objection, of showing the power, I would have permitted the deed to go in. If you had failed to show possession, then I should have sustained the objection on that first ground. If you had relied on your documentary title to the land and had not in addition thereto shown possession, other objections, having been raised to this particular deed, made it necessary for the court to construe the deed. The court has construed the deed to mean just as stated in the granting clause that the deed is to the second party, and that the second party is Emma Tallock, her heirs and assigns.'

The plaintiffs then offered to prove that Emma Tallock went into possession of the property about the date of the deed and remained in possession until her death in December, 1909; that Mattie Ansley, together with her husband and children, lived upon the land with Emma Tallock for two or three years, beginning at or about the date of the deed; that Mattie Ansley died during the year 1908; that she left, surviving her, her husband, J. C. Ansley, and her children, Ernest M. Ansley, Elbert O. Ansley, John M. Ansley, and Millie May Ansley; that the real parties in interest, E. P. Axtell and C. D. Rinehart, have by proper conveyances acquired the interests of the said nominal plaintiffs in this cause; that the plaintiffs offered to prove, by a surveyor, that the description in said deed is sufficient to locate the land; and that the land therein described can be located by a surveyor from the description contained in the deed, when the said description is considered with reference to the land of William Ballard and the land known as the Sand Hills tract, which are mentioned in said deed.

The defendant objected to the introduction of this evidence because it was irrelevant and immaterial, and, upon this objection being sustained, the plaintiff moved for a nonsuit with bill of exceptions, and sued out writ of error to this court, and assigns as errors the refusal of the trial judge to permit the introduction of the deed from J. C. Greeley as trustee for Mellen C. Greeley to Emma Tallock and others, and his refusal to allow plaintiffs to prove the facts set forth above.

In ruling on the objection to the introduction of the deed, the court below stated that, if there had only been the first objection, he would have permitted the deed to be introduced, subject to subsequent proof which would establish its relevancy. In view of the fact that the attorney for defendant in error discusses his first objection, and as the case will go back for a new trial, we feel it incumbent upon us to pass upon this objection, and we find that the ruling of the trial judge was correct. The judge did not rule definitely on the second objection, which was that the description of the land sought to be conveyed did not furnish means of identifying the tract, and, as this question may arise in another trial, it is necessary here to determine its merits. The description is as follows:

'Part of the Sand Hills tract, also being part of the Willie Brown tract, being in William Ballard east line 206 feet north of the base line, thence continue north in the said Ballard line 588 feet, thence easterly at right angles with first line 330 feet, thence southerly parallel with first line 588 feet, thence westerly 330 feet to the place of beginning, containing 4 acres.'

This description seems sufficient to identify the land. The grantor and grantees are described as being of the county of Duval and state of Florida, and the deed is recorded in that county, and, in the absence of anything to the contrary, the presumption is that the land is situated in the county and state where all the parties reside, and where the deed was executed, acknowledged, and recorded.

In the case of Horton v. Murden, 117 Ga. 72, 43 S.E. 786 the land was referred to as 'my lot 50 front of Fortune street, running back 155 feet, joining on the north side by Murden and on the south side by Horton.' The state, county, and city in which the lot was located were not referred to. It was claimed that the instrument was void for want of adequate description. The ...