Blackiston v. Smith

• Decision Date: 18 January 1917
• Citation: 73 So. 839,73 Fla. 25
• Parties: BLACKISTON v. SMITH et al.
• Court: Florida Supreme Court

73 So. 839

73 Fla. 25

BLACKISTON v. SMITH et al.

Florida Supreme Court

January 18, 1917

Error to Circuit Court, Marion County; W. S. Bullock, Judge.

Action in ejectment by Malitha Smith and her husband, Stephen Smith and others, against James R. Blackiston. Judgment for plaintiffs except Stephen Smith, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

In an action of ejectment evidence of an equitable estoppel is admissible under the general issue.

Evidence tending to prove an equitable estoppel against the plaintiff in ejectment or tending to prove an equitable title in defendant's grantor claiming under the plaintiff should not be excluded upon the ground that such evidence is immaterial and irrelevant, although such evidence may not be sufficient of itself for such purpose.

Mere lapse of time during which plaintiff in ejectment fails to assert title to land owned by him does not of itself work an estoppel against him.

COUNSEL Raymond B. Bullock, of Ocala, for plaintiff in error.

R McConathy, of Ocala, for defendants in error.

OPINION

ELLIS, J.

The defendants in error brought an action of ejectment in the circuit court of Marion county against James R. Blackiston the plaintiff in error, to recover a lot of land in the northwest quarter of section 18, township 15, range 22 east in Marion county, and mesne profits. The defendant pleaded the general issue. The cause was submitted to the judge without a jury, who found that Melitha Smith was the owner in fee simple and entitled to the possession of an undivided one-fourth interest in the lot described, and that Mary Knight and Evelina Murray were each the owner in fee simple of an undivided one-twelfth interest in the land; that Melitha Smith should recover mesne profits in the sum of $52 and Mary Knight and Evelina Murray each should recover $17.50. A judgment was entered in accordance with this finding, and the defendant Blackiston took a writ of error.

The evidence shows that Stephen Fant was the owner in fee of the land described in the declaration, and died intestate about 40 years ago, leaving surviving him his wife and four children, Melitha Smith, Hagaar Pendleton, the mother of Mary Knight, and Evelina Murray and Amaziah and Hezekiah Fant. Stephen Fant's widow married one Robinson, and afterwards she married E. B. Tobin, and died about 1906, her husband Tobin, surviving her. Before her death Mary Tobin made a will in which she undertook to devise the lot in dispute to her husband, E. B. Tobin. Blackiston, the defendant below, claimed title under E. B. Tobin. The plaintiffs below, Melitha Smith, Mary Knight, and Evelina Murray, claim title to the lot as heirs of Stephen Fant. Mary Fant, the widow of Stephen, lived upon the lot, used it as her home, and was in possession of it when she died in 1906.

The defendant offered to prove by certain witnesses that after the death of Stephen Fant Mary, his widow, who afterward married Tobin, had an understanding with Melitha Smith and Hagaar Pendleton, her two daughters, whereby in exchange for their interests in the lot in dispute, she gave to them two other lots, her separate property, numbered 1 and 4 of block 15, New Survey North, in Ocala; that pursuant to this understanding Melitha Smith and Hagaar Pendleton went into possession of said lots and claimed them as their own in lieu of their interests in the property in litigation. The plaintiff below objected to this proposed evidence, however, upon the ground that it was irrelevant and immaterial. The court sustained the objection upon the ground that such understanding or agreement could not be shown under the plea of not guilty, to which ruling the defendant duly excepted.

The questions propounded by the defendant to the witnesses July Brown, ...