Bruner v. Hart

• Decision Date: 15 February 1910
• Citation: 59 Fla. 171,51 So. 593
• Parties: BRUNER et al. v. HART et al.
• Court: Florida Supreme Court

51 So. 593

59 Fla. 171

BRUNER et al. v. HART et al.

Florida Supreme Court

February 15, 1910

Rehearing Denied March 15, 1910.

In Banc. Error to Circuit Court, Jackson County; J. E. Wolfe Judge.

Action by Richard Bruner and others against Willie Greene Hart and others. There was a directed verdict for defendants, and plaintiffs bring error. Affirmed.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

Where it plainly appears from the evidence that the plaintiffs, in an action of ejectment, when the only issue is one of title have established no legal title to the land in dispute, the circuit judge commits no reversible error after the evidence is all before the jury in directing a verdict for the defendants.

COUNSEL Wm. B. Farley and John M. Calhoun, for plaintiffs in error.

Benj. S. Liddon and C. L. Wilson, for defendants in error.

OPINION

HOCKER, J.

Since the original opinion was filed in this case a petition for a rehearing has been presented, and, as an error of fact is pointed out in the petition, we have reconsidered the case and present our views in the following opinion.

Richard Bruner, Annie Kirkland, Lugenia Davis, and her husband, Fred Davis, Sallie Ledbetter, William Ledbetter, Oscar Ledbetter Callie Jones, and M. Jones, her husband, Manse Bruner, James Bruner, Belle Bruner, Bettie Ledbetter, and George Ledbetter, her husband, Alice Bruner, Everett Mathias, and Jessie Mathias, by her next friend, Everett Mathias, brought an action of ejectment in the circuit court of Jackson county, in December, 1907, against Willie Greene Hart and M. B. Hart, her husband, for the possession of the W. 1/2 of the N.E. 1/4 and the E. 1/2 of the N.W. 1/4 of section 30, township 7 N., range 11 W., situated in Jackson county.

There was a plea of not guilty by the defendants, and in November, 1908, a trial was had.

After the evidence was all in, the circuit judge gave an affirmative charge for the defendants, which resulted in a verdict and judgment in their favor.

The case is here on writ of error, and one of the assignments challenges the propriety of the affirmative charge. The plaintiffs in the suit below were all children or grandchildren (joined in some instances by their husbands) of William J. Bruner and claim title through him. The plaintiff introduced in evidence a patent from the United States government, dated the 1st day of December, 1857, for the E. 1/2 of the N.W. 1/4, section 30, township 7 N., range 11 W. This patent contained an indorsement in the following words:

'For value received, I hereby deliver unto Sion Bradshaw the within title to land, Feby. 25, 1859.

'W. J. his X mark Bruner.

'Attest:

'John L. Hayes.'

No written evidence of any kind was introduced showing title in William J. Bruner to the W. 1/2 of the N.E. 1/4 of section 30, township 7, range 11 W.

He died in 1859. He lived on the 160 acres involved in the suit some years before his death, but exactly how long does not appear.

The evidence is not sufficient to show title by adverse possession in him to the above-described 80 acres at the time of his death.

The defendants introduced in evidence a warranty deed dated 25th day of February, A. D. 1859, purporting to be executed by Wm. J. Bruner, conveying the land involved in this suit to one Sion Bradshaw, his heirs and assigns, for the consideration of $500. The deed is signed in the following manner:

'Wm. J. Bruner, his X mark [L. S.]

'Sarah her X mark Bruner, [L. S.]

'Test:

'John his X mark Bruner.

'Jno. L. Hays.'

There does not appear to be any acknowledgment of this deed by W. J. Bruner, but there is what purports to be one by Sarah Bruner on the 9th January, 1860, and also what purports to be a quitclaim of her right of dower in said lands on the 9th January, 1860.

The plaintiffs objected to the introduction of this deed because (1) it has not two subscribing witnesses; (2) does not show any delivery to Sion Bradshaw; (3) is in the possession of the grantors; (4) it is not joined in by husband and wife; (5) the land appears to be a homestead. There objections were overruled. We will discuss such of these as are presented here. The evidence shows the following facts: Wm. J. Bruner sold this tract of land to Sion Bradshaw for $500, which was paid him in gold. This deed according to the testimony of Richard Bruner, who claims to have been about 12 years old when it was executed, and who is one of the plaintiffs and a principal witness for them, was placed in the hands of his uncle John Bruner, who was to hold it until Bradshaw had taken final possession of the land described in it. Richard Bruner claims that Bradshaw never did take possession of the land, and the deed was never delivered to Bradshaw. Neither he nor any other of the plaintiffs testify that the deed was placed in John Bruner's hands upon any sort of condition whatever, nor that the grantor therein, when he placed it in John Bruner's hands, reserved any sort of control over the deed. It was simply to be actually delivered to Bradshaw when he took possession of the land. Very soon after the execution of this deed, Wm. J. Bruner died, and Sarah Bruner, his wife, removed with her children to Alabama. There is conflict in the testimony as to whether Bradshaw took possession of the land when she left for Alabama. None of the children were grown. For some reason, Mrs. Bruner became anxious to return to her former home in Florida, and some sort of negotiations with Bradshaw followed which resulted in Bradshaw's executing and delivering a warranty deed to W. 1/2 of N.E. 1/4 of the land now in dispute to William L. Whitfield, who married Mrs. Sarah Bruner's oldest daughter; Whitfield paying $500 in gold to Bradshaw, the same amount of gold which Bradshaw had paid W. J. Bruner, for the 160 acres. Mrs. Sarah Bruner, the ancestress of the plaintiffs, became possessed of the patent and these two deeds, and kept them in her possession for some years, and then they were kept some time by Richard Bruner, her son, and Jim Bruner, another son, and other members of her family.

As soon as the deed was made by Bradshaw to Whitfield, Mrs. Sarah Bruner returned to live upon this 160 acres of land, with her children, none of whom were grown, and, so far as we can discover from the evidence, continued in undisputed control and possession of it for about 34 years.

John Paulk, a witness for the plaintiffs, testifies that he knew the Bruners and the land in controversy; that several years ago he was at Mr. Hart's, and proposed to buy the place of Mrs. Sallie Bruner, who 'said she could not sell it as long as she lived'; that it was always claimed in the settlement as Mrs. Bruner's land. George Ledbetter another witness for the plaintiffs, testified that he rented some of this land from Jim Bruner, who rented it from Mrs. Bruner; that the next year he rented it from her; that he worked the place in 1885, 1890, and 1891, and paid the rent to Mrs. Bruner; that, when he got acquainted with the Bruners, they were living together on the place, and that the old lady, Mrs. Bruner, was the boss. The children grew up there and were there married. Mrs. Bruner continued to live on the place until 1886, when she went to live with Richard Bruner, her son. She lived with him for four or five years, and then with Jim Bruner for a year or two. From Jim Bruner's she went to live with her youngest daughter, Mrs. Hart, in 1894, and lived with her until she died in 1904. In that year Mrs. Sarah Bruner...