Culbertson v. Montanbault

• Decision Date: 01 November 1961
• Docket Number: No. 2210,2210
• Citation: Culbertson v. Montanbault, 133 So.2d 772 (Fla. App. 1961)
• Parties: Oiiver H. CULBERTSON et us., Appellants, v. Herbert T. MONTANBAULT et ux., Appellees.
• Court: Florida District Court of Appeals

Page 772

133 So.2d 772

Oiiver H. CULBERTSON et us., Appellants, v.Herbert T. MONTANBAULT et ux., Appellees.

No. 2210.

District Court of Appeal of Florida, Second District.

Nov. 1, 1961.

Ed W. Harris, St. Petersburg, for appellants.

Raymond Sheldon, Tampa, for appellees.

SMITH, Judge.

This is an appeal from a final decree quieting title to certain lands declaring the plaintiffs, Herbert T. Montanbault and Bessie M. Montanbault, his wife, who are the appellees here, the owners in fee simple of a 20-acre parcel of land, free and clear of any and all right, claim, or demand of the defendants, Oliver H. Culbertson and Emma C. Culbertson, his wife, the appellants here.In their complaint, the complainants deraign their title as follows:

(a)B. F. Leonard, being the owner of the parcel, conveyed the same to Frank Lette and Lizzie Lette, his wife, by warranty deed dated July 26, 1921, and recorded September 26, 1921:

(b)Lizzie Lette subsequently died;

(c)Frank Lette conveyed the property to complainants by warranty deed dated April 9, 1959, and recorded the next day.

The complaint then alleges that there appears of record the following conveyances which casts a cloud upon plaintiffs' title as follows:

(a)John U. Hemmi and wife conveyed the parcel by warranty deed recorded August 1, 1921, to Oliver Culbertson.

(b)W. H. Gill and wife conveyed the parcel by warranty deed recorded May 12, 1926, to Oliver Culbertson.

(c)Albert Culbertson conveyed the parcel by warranty deed recorded November 4, 1927, to Oliver H. Culbertson.

(d) That the above-mentioned Oliver Culbertson and Oliver H. Culbertson is the same person and is one of the defendants.The complaint further alleged that the complainants were in possession of the parcel of land.

The defendants answered admitting that all of the deeds had been recorded as alleged in the complaint and further affirmatively alleged that a complete search of the records disclosed that B. F. Leonard, who purports to have executed a deed to Lette, had never at any time owned or had any claim of title to the land and that his deed was a 'wild deed'.The answer further denied complainants possession and affirmatively alleged their possession of the land since 1921 and that no adversity had ever been noted against them until complainants attempted to claim title in the year 1959.The answer prayed for affirmative relief and that the complainants be barred from claiming any interest in the land.

From the allegations of the complaint and the admissions of the answer, it was established that the defendant had a prior record title.Testimony was then taken by deposition before the court.There was little, if any, material variance in the evidence given by the witnesses.In brief, Frank Lette testified by deposition as a witness for complainants that he lived on the property which he deeded to Montanbault; that he bought it from Leonard in 1921; built a bungalow on it; lived there from 1921 to 1926; and that no one questioned his ownership of the property, and he paid taxes on it every year until he sold it.It should be noted that his testimony is completely silent on the question of possession subsequent to 1926.

Mr. Montanbault testified to the effect that he looked at the property in 1959, bought it from Lette, recorded the deed and in January, 1960, fenced the south and west sides tying his fencing into the existing fence on the north and east sides.The above testimony, plus documentary evidence of the deeds and payment of taxes, constituted all of the testimony of the complainants.

Mabel M. Gill testified as a witness for the defendant, by deposition, to the effect that there were three parties who had interest in the parcel of land in 1921, and that by the deed recorded August 1, 1921, Hemmi conveyed his interest to Oliver H. Culbertson; that by the deed recorded May 12, 1926, she and her husband conveyed their interest to Culbertson; and that by the deed dated November 4, 1927, Albert Culbertson conveyed his interest to Oliver H. Culbertson.She testified that she and her husband bought the property in question and between 1914 and 1917they put a fence around it...