Coogler v. Rogers

• Decision Date: 14 December 1889
• Parties: COOGLER et al. v. ROGERS.
• Court: Florida Supreme Court

7 So. 391

25 Fla. 853

COOGLER et al. v. ROGERS.

Florida Supreme Court

December 14, 1889

Appeal from circuit court, Hernando county; G. A. HANSON, Judge.

Syllabus by the Court

SYLLABUS

1. A deed conveying lands which are at the time of its execution held adversely by a person, not a party to the deed, is void as to such person, but not as between the parties to the deed.

2. Where a conveyance is made of lands which at the time are in the adverse possession of one not a party to the deed ejectment will not lie in the name of the grantee to such deed, but only in the name of the grantor.

3. If the grantee in a deed conveying land held adversely by another institute an action of ejectment in the name of the grantor, against the person holding adversely, the action will not be dismissed at the instance of the defendant, on the ground that it was brought without the knowledge or consent of the grantor, or that he neither has nor claims any interest in the land.

4. The act of March 6, 1845, providing that, if a married woman die in this state without children surviving her, the husband shall be entitled to administration, and to all her property both real and personal, applies as well where the wife is under 21 years of age, as where she has attained that age and, where a wife under 21 years of age dies, this act, and not the statute of November 17, 1829, (section 2, p. 469 McClel. Dig.,) controls the descent of her property.

5. If lands are held adversely, and another person who is estopped to claim them as against the one in adverse possession convey them to a third person, the estoppel will extend to the last-named person, and those claiming under him.

6. Possession under an executory contract of purchase is adverse, except as to the party contracting to convey, and under whom the possession is held.

7. The possession of successive occupants between whom there is privity may be united to make up the period of adverse possession necessary to constitute a defense against an action of ejectment founded on the true title.

8. The possession of one co-tenant is prima facie that of the other, and there must be something amounting, in law, to an ouster, before ejectment will lie, or the statute of limitations begin to run between them.

9. The statute of limitations will begin to run in favor of a co-tenant in possession against the co-tenant out of possession from the time that there is an ouster of the latter by the former.

10. Where the testimony clearly shows an estoppel of the plaintiff, and an adverse possession for the period of seven years, under the statute of limitations, as against the true title upon which the plaintiff claims, the verdict will be set aside as contrary to the evidence.

COUNSEL

Angus Paterson, for appellants.

Wall & Wall and Shackleford & Palmer, for appellee.

OPINION

WHITE, J.^[1]

Plaintiff below recovered a judgment for the lands in dispute, from which defendants appealed. Appellants assign nine errors in the trial of the case below, and rely for a reversal on those several grounds. We propose to notice only such of these as in our opinion are decisive of the case.

The first error assigned is that the court erred in refusing to dismiss said cause on his motion, because brought in the name of Rogers, the nominal plaintiff, by Smith, the real plaintiff, without the knowledge or Rogers.

Was the action properly brought in the name of C. P. Rogers? The record does not show that suit was commenced in the name of Rogers against his consent, or that he at any time interposed objections to its being so entered or continued in his name. He only disclaims any interest in the land, or knowledge of the action on the trial of the case. It is well settled that a deed made to land by a person out of possession, when the lands are held adversely by another, though good as between the grantee and grantor, and as to all other persons, except as to the party in adverse possession, yet as to him, and to those that afterwards come in under him, it is entirely void and as a conveyance a mere nullity, and cannot be read in evidence against him. In such case the attempt to convey, at least as between the grantor, grantee, and the person in possession, fails to accomplish its purpose or object.

In such case, in contemplation of law, as between the grantor, grantee, and the person in adverse possession, the title remains in the grantor or original proprietor, and he may sue to recover the land, but the deed to lands thus held in adverse possession, being good as against the grantor, his heirs and strangers, and void as to the party in possession, as action will lie against him in the name of the grantor, not withstanding such deed, but not in the name of the grantee; and such recovery, when had by the grantor, will inure to the benefit of the grantee. Hamilton v. Wright, 37 N.Y. 502; Wade v. Lindsey, 6 Metc. 413, 414; Betsey v. Torrance, 34 Miss. 138; Wilson v. Nance, 11 Humph. 191; Edwards v. Parkhurst, 21 Vt. 472.

So it has been held in Pennsylvania that ejectment will lie and be maintained in the name of the warrantor, although he might have no beneficial interest in the land, and might not have known of the action. Campbell v. Galbreath, 1 Watts, 70.

As before remarked, Rogers does not seem to have interposed objection or opposition to the use of his name as nominal plaintiff; and if he conveyed or attempted to convey to Smith, and received a valuable consideration therefor, inasmuch as the action could have been maintained successfully in his name, he would by estopped to refuse the use of his name in an action to promote and secure the ends of justice, in the event he attempted so to do. Entertaining these views, we see no error in the action of the court below in overruling appellants' motion; and this disposes of several of the other errors assigned by appellants, especially the second, fourth, and others of like character.

It being evident that the action must stand or fall upon the strength of the title of Rogers alone, and his recovery, if recovery be had, inuring to the benefit of Smith, the real plaintiff, it follows that, if the recovery cannot be had upon the strength of the title of Rogers, then the action cannot be maintained, nor a recovery had upon the title of both combined.

The fifth error assigned by appellants is the court below erred in charging the jury 'that, if Annie Rogers received land from her father, John L. May, and died without issue, the land descended to her husband, whether she was of age or not.'

It is earnestly contended by counsel for appellants that, inasmuch as Annie Rogers died without issue, and before she arrived at the age of 21 years, that such real estate descended to the paternal kindred or to the kindred of her father, John L. May, deceased, under our statute of descent of 1829. McClel. Dig. p. 469, § 2. While we consider the statute of 1829 as the law governing the descent of real and personal property of unmarried minors, where the same is derived from the father or mother, without expressing an opinion as to the statute of 1829 on estates of married persons who died without issue, and who were minors at the time of their death, prior to the act of March 6, 1845, we think it was the intention of the legislature, in passing the twelfth section of that act, (McClel. Dig. 471,) to make a distinction between the descent of property of deceased unmarried minors, and that of deceased married minors, without regard to the source from which the latter class derived such property, and we are persuaded that the descent of property owned by married persons who died under the age of 21 is governed and controlled by the act of 1845, directing the disposition and descent of property of married persons dying intestate, whether with or without issue born, and that it is not now controlled by the act of 1829.

The legislature of 1845 no doubt wisely intended in passing said act to more clearly define and fix the rights of a surviving husband or wife on the death of the other, as to the property owned by either, when dying intestate. It was reasonable and right, just and proper, that the old law of 1829 should be made more intelligible and just, and conform more to the liberality of our age and institutions. The rights of the surviving husband, and his interest in the estate of his deceased wife as tenant by the curtesy, secured to him by section 2, Acts 1829, in estates there referred to, were hedged in by the embarrassing subtleties growing out of the doctrine of tenancy by the curtesy at common law. These intricacies and subtleties were a fruitful source of litigation, for to create a tenancy by the curtesy at common law four things had to occur had combine: (1) Marriage; (2) actual seisin of the land by the wife during coverture; (3) issue born alive of her which might inherit the same estate as heir of the wife; and (4) the death of the wife. This often worked a great hardship to the surviving husband, who, though he might have lived with his wife from early youth to hoary age, and though there was actual seisin of the wife for the whole period of coverture, and though he might have expended his energies in improving and embellishing the estate of the wife, yet, if there were no issue born of the wife capable of inheriting the estate as heir of the wife, on her death the surviving husband was left without any estate whatever in her property, and was liable to be ousted from his home in his old age, as he took nothing as tenant by the curtesy. This unjust and inequitable appendage of the common law being contrary to our institutions, and to the liberality of the age in which we live, no doubt led to the passage of the act of 1845, the provisions of...