Clark v. Cochran

• Decision Date: 12 May 1920
• Citation: 85 So. 250,79 Fla. 788
• Parties: CLARK et al. v. COCHRAN et al.
• Court: Florida Supreme Court

85 So. 250

79 Fla. 788

CLARK et al. v. COCHRAN et al.

Florida Supreme Court

May 12, 1920

Rehearing Denied June 22, 1920.

Error to Circuit Court, Franklin County; E. C. Love, Judge.

Action of ejectment by John William Clark and another, for the use of the Townsend-Bower Company, against J. F. Cochran and F M. Phillips, partners doing business as Cochran & Phillips. Verdict and judgment for defendants, and plaintiffs bring error. Reversed.

See also, 80 So. 745.

Syllabus by the Court

SYLLABUS

In an action of ejectment, the rule is that the plaintiff must recover, if at all, upon the strength of his own title, and not on the weakness of his adversary's title; but, if the plaintiff traces his title from the government, he need not show possession by intermediate grantors.

In an action of ejectment, involving the title to lands embraced in what is known as the 'Forbes Purchase,' a large tract of land lying between the St. Marks and Apalachicola rivers in the state of Florida, and granted by the Seminole Indians and confirmed by the Spanish government to Panton, Leslie &amp Co. and John Forbes & Co., the patent from the United States government to Colin Mitchel and Robert Mitchel, issued in the year 1842 pursuant to certain decrees of confirmation of the claim of Colin and Robert Mitchel to the lands described, is sufficient to establish title to the lands described in Colin Mitchel and other named patentees at the date of the patent.

In an action of ejectment involving the title to any such lands copies of deeds of conveyance and other documents, tending to show a transfer of the title to the lands from Colin Mitchel and others to the Apalachicola Land Company, are admissible as ancient documents.

Certified copies of the record of decrees in chancery, in a cause in which trustees of the Apalachicola Land Company were defendants, appointing a receiver of the company, with power to sell the lands in like manner as the trustees had been authorized to do under the company's articles of association, such orders bearing dates from 1857 to 1880, and appearing of record in the clerk's office for Franklin county, are admissible in evidence as ancient documents in an action of ejectment involving the title to lands embraced in the description of lands contained in the patent from the United States government to Colin Mitchel and others.

Where the secretary and treasurer of a corporation testifies that it is his duty, as such officer of the corporation, to have the custody of all deeds and other documents belonging to the corporation, and that he has not in his possession the original of a certain deed to the corporation or a certain deed belonging to it, and that he did not know where it was, the showing thus made is sufficient for the introduction of secondary evidence of the contents of such document under section 1520 of the General Statutes of 1906.

A tax deed, although invalid, is sufficient as an instrument purporting to convey lands to give color of title upon which to base the defense in an action of ejectment of title by adverse possession.

The claim of title by adverse possession under color cannot be built upon desultory logging operations on wild uncultivable lands, where the possession of the land is not of such character that at any time during the period of seven years the defendant or claimant could be successfully sued as a trespasser.

The distinction, drawn by this court in the character of possession necessary to support title by adverse possession, between that possession evidenced by the mere occasional cutting and removing of timber from wild lands and that evidenced by the making of turpentine thereon continuously for the statutory period of seven years, is adhered to.

A tax deed, made and executed under the provisions of chapter 4888, Laws of Florida 1901, in substantial compliance with the form therein prescribed, is prima facie valid; but such prima facie validity may be overcome, in which case the party claiming under such deed must show its validity as a conveyance of title.

Under the provisions of chapter 4322, Laws of Florida 1895, the assessment in the aggregate of several sections of land in one assessment, the failure of the clerk of the court to forward to the owner or person last paying taxes on the land of a notice of application for a tax deed thereto, or either of these conditions, is sufficient to establish the invalidity of a tax deed under the said statute.

Where one acquires a tax certificate, his rights thereunder are determined by the laws in force at the time the certificate is acquired, and the deed issued upon such certificate confers only such rights upon the vendee or holder as the statute in force at the time and under which the deed is issued confers.

COUNSEL E. T. Davis, of Tallahassee, and C. H. B. Floyd, of Ft. Pierce, for plaintiffs in error.

Jos. A. Edmondson and W. J. Oven, both of Tallahassee, for defendants in error.

OPINION

ELLIS, J.

The plaintiffs in error brought an action of ejectment in the circuit court of Franklin county against the defendants in error as partners under the name of Cochran & Phillips to recover possession of certain lands, described as the E. 1/2 of section 1, all of section 11, W. 1/2 of section 12, and N.W. 1/4 of section 13, in township 6 south, range 4 west containing about 1,440 acres. The defendants pleaded not guilty, the parties went to trial, and there was a verdict and judgment for the defendants. The plaintiffs took a writ of error, and assigned 21 errors.

The plaintiffs claimed title to the lands in dispute under a patent from the United States government to Colin Mitchel and Robert Mitchel, issued in 1842 pursuant to certain decrees of confirmation of the claim of Colin and Robert Mitchel to certain lands described in the patent. The lands described in the patent embrace approximately the territory between the St. Marks and Apalachicola rivers and extending from township 2 north to the Gulf of Mexico.

The defendants claimed title under two tax deeds made in 1901 to the Franklin County Lumber Company for the taxes of 1899, and a deed from that company to them in November, 1911, and title by adverse possession under color of title.

The rule in ejectment is that the plaintiff must recover, if at all, upon the strength of his own title, and not on the weakness of his adversary's title; but, if he traces his title from the government he need not show possession of intermediate grantors. See Burt v. Florida Southern R. Co., 43 Fla. 339, 31 So. 265; Ropes v. Minshew, 51 Fla. 299, 41 So. 538; Skinner Mfg. Co. v. Wright, 56 Fla. 561, 47 So. 931; Florida Finance Co. v. Sheffield, 56 Fla. 285, 48 So. 42, 23 L. R. A. (N. S.) 1102, 16 Ann. Cas. 1142; Ocala Northern R. Co. v. Malloy, 68 Fla. 430, 67 So. 93; Stewart v. Mathews, 19 Fla. 752.

The defendants' counsel in their brief urge that the plaintiffs 'did not deraign a 'regular' chain of title from the patent from the United States to Colin Mitchel and others, or from Colin Mitchel and others down to plaintiffs.'

The case of Mitchel et al. v. United States, reported in 9 Pet. 711, 9 L.Ed. 283, decided the controversy between the United States government and Colin Mitchel and others, which arose concerning the title to the lands described in the patent which was afterwards issued. In that case it was decided that the title to the land rested upon grants from the Seminole Indians, which grants were confirmed by the Spanish government to Panton, Leslie & Co. and John Forbes & Co., successors to them, and that Colin Mitchel and others, represented by Robert Mitchel, had, by the law of nations, the laws and usages and customs of Spain or the province of Florida, acquired a right to the lands which would have been valid had the territory remained under the dominion of Spain. It is true that the patent issued by the government of the United States to Colin Mitchel and others was merely a written acknowledgment of title in the patentees; it is something more than a mere 'quitclaim.' It is an acknowledgment that title to the lands became vested in the patentee 'under the laws and ordinances of Spain under whose government the title originated; the proceedings under the treaty and the acts of Congress relating thereto.' Under the treaty between the United States and Spain the territory described would have become the property of this government if Spain had not already disposed of the title according to the laws and customs of that government. The Supreme Court of the United States held that the government of Spain had disposed of its title prior to the treaty, and that Colin Mitchel and others had acquired a right to the land which, under the usages, customs, and laws of Spain, the treaty, and the acts of Congress in relation thereto, was valid. Pursuant to that decision the government surrendered, conveyed, granted its rights or claims to the land to the patentees. The patent and the decision referred to above are sufficient to establish title to the land in Colin Mitchel and others at the date of the patent.

The objections and exceptions taken and made by the defendants to the copies of deeds of conveyance, wills and other documents tending to show a transfer of the title to the land in dispute from Colin Mitchel and others down to the Apalachicola Land Company, an association formed by the original owners of the land and their legal representatives for the purpose, as stated in the articles of agreement of enabling 'the proprietors to give clear and unimpeachable titles to purchasers without delay,' etc., were properly overruled. The documents are ancient, some being dated as early as 1835, they appear to have been formally executed and duly recorded, and to have...