Dallam v. Sanchez

• Decision Date: 17 November 1908
• Parties: DALLAM et al. v. SANCHEZ et al.
• Court: Florida Supreme Court

47 So. 871

56 Fla. 779

DALLAM et al. v. SANCHEZ et al.

Florida Supreme Court

November 17, 1908

Headnotes Filed December 8, 1908.

Rehearing Denied Jan. 8, 1909.

In Banc. Appeal from Circuit Court, Brevard County; Minor S Jones, Judge.

Bill by Mary A. P. Sanchez and others against William M. Dallam individually and as trustee, and others. Decree for complainants, and certain defendants appeal. Reversed.

Syllabus by the Court

SYLLABUS

Sections 1939 to 1946, inclusive, of the General Statutes of 1906, formerly sections 1490 to 1497 of the Revised Statutes of 1892, regulate partition proceedings in this state. As is provided by section 1941 of the General Statutes of 1906, a bill in chancery for partition 'may be filed by any one or more of several joint tenants, tenants in common or coparceners, against their co-tenants, coparceners or others interested in the lands to be divided,' thereby authorizing the partition of lands only among those who have title thereto.

A suit for partition cannot be resorted to as a substitute for the action of ejectment, nor used for the sole purpose of testing a legal title, a partition suit not being the proper proceeding in which to settle a disputed title; but, whenever the case is properly one of partition, the bona fide object of which is the partition of land between the common owners thereof, some of whom are complainants and the others are defendants, and some of the parties to the suit are in possession, then all controversies as to the legal title and right of possession may and should be settled by the court as authorized by the statute.

A power of attorney given to an agent to sell and convey lands is revoked by the principal's death, and a deed made by the agent thereafter, whether with knowledge or notice of such principal's death or not, is void.

An order, following the verdict in an action of ejectment in favor of the defendant, in the words, 'Whereupon it is ordered, considered, and adjudged that judgment be entered up for the defendant, M. J. S., and that the defendant do have and recover her costs, amounting to $-----,' is not a final judgment, but, at best, must be held to be merely an order for such judgment.

Section 1966 of the General Statutes of 1906 provides that the party plaintiff may bring his action of ejectment against either a party in possession of the land 'or the one claiming adversely.'

The second paragraph of section 1968 of the General Statutes of 1906 provides that the plea of 'not guilty in an action of ejectment shall put in issue the title of the lands in controversy and shall be held to admit the possession of the defendant, or in case of an adverse claimant, the adverse claim of the defendant'; but, as our action of ejectment is purely statutory, neither the statutory declaration nor the plea of not guilty could be held to be admissions of the nature, character, extent, or duration of the defendant's possession. At best, the plea of not guilty could only be held to admit the possession of the defendant at the time of the institution of the action.

Under the provisions of rule 18 of the Supreme Court rules adopted March 2, 1905 (page 11 of such rules prefixed to 51 Fla., 37 South. viii), no objection will be allowed to be taken in the appellate court to the admissibility of any evidence, oral or documentary, found in the record in a chancery cause, unless the record affirmatively shows that the objection thereto was presented to the chancellor and expressly ruled upon by him in the court below at or before the final hearing of the cause. Every matter purporting to be evidence, found copied by the clerk into the record in such cause, will be presumed to have been used in evidence in the court below, unless the record affirmatively shows the contrary.

The adverse possession of land under color of title, necessary to confer title, under section 1721 of the General Statutes of 1906, must be actual, continuous, and adverse to the legal title for the full statutory period of seven years, and such possession must be established by clear and positive proof.

In a suit for partition of lands, where the title of the complainants thereto is denied by the answer, and the evidence fails to establish their title and their right to a partition thereof, it becomes unnecessary to consider any of the other questions presented, since a decree rendered therein in favor of complainants must be reversed for such failure of title.

COUNSEL

Cockrell & Cockrell and A. H. King, for appellants.

E. C. F. Sanchez, D. L. Gaulden, Samuel T. Shayor, and Geo. U. Walker & Son, for appellees.

OPINION

SHACKLEFORD C.J.

The original bill in this suit was filed by the appellees as complainants against the appellants and other parties as defendants in the circuit court for Brevard county on the 25th day of November, 1901. The bill was amended several times in important particulars by leave of the court, additional parties were made defendants, various and sundry proceedings were had, and different interlocutory orders were made during this protracted litigation. The transcript of the record covers over 300 typewritten pages. However, in view of the conclusion which we have reached, we deem it unnecessary to set forth the numerous pleadings, proceedings, and orders in detail, or to make any extended statement of the facts. Stated in a very condensed way, the bill sought partition of a large tract of land situated in the counties of Volusia and Brevard between the appellees and the appellants; the appellees alleging therein that they were seised and possessed of and entitled to an undivided one-half interest therin and that the appellants were entitled to the other undivided one-half interest. The other defendants were made parties by reason of their being lessees or tenants of the appellants; but, as they have not joined in the appeal, it is unnecessary for us to consider the decree appealed from in so far as it affects them or their interests. In fact, it would be improper to do so, since such parties are not before us. The appellees based their title to such lands upon a conveyance of the entire tract to their ancestor, Margaret J. Sanchez, by a deed bearing date the 24th day of November, 1859, executed by Bernardo Segui, by Venancio Sanchez, his attorney in fact. Complainants further base their title and right to partition upon an alleged judgment entered in favor of their ancestor in an action of ejectment instituted against Margaret J. Sanchez by the heirs of Bernardo Segui, deceased, in the circuit court for Volusia county, whereby a recovery of the entire tract of land was sought; such alleged judgment being in favor of the defendant and bearing date the 16th day of November, 1883. Complainants further base their right and claim to a partition of the lands upon the fact that their ancestor was in possession thereof under the deed so executed to her from the date of such deed, the 24th day of November, 1859, up to the year 1883, when she conveyed an undivided one-half interest therein to the heirs of Bernardo Segui, and that since the date of such conveyance complainants have been in actual possession of an undivided one-half interest therein as tenants in common with such heirs. The bill further alleged that such heirs of Bernardo Segui were the grantors of the appellant William M. Dallam, and also alleged that the lands in question were 'wild and uncultivated, low, swampy pine lands, interspersed with cypress ponds, savannahs, saw grass, and swamp, and the chief and only value consists in the pine timber growing thereon.' The answer filed to the bill by such appellant denied all the equities asserted by the complainants; such denial being set forth in detail. A replication was filed thereto and voluminous testimony taken before an examiner appointed by the court for that purpose. A final decree was rendered, in which a partition of such lands was decreed in accordance with the prayer of the bill. From this decree appellants have entered their appeal, assigning seven errors, which, however, we shall not treat in detail.

Sections 1939 to 1946, inclusive, of the General Statutes of 1906, formerly sections 1490 to 1497 of the Revised Statutes of 1892, regulate partition proceedings in this state. They have been construed several times by this court. See Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 722, 111 Am. St. Rep. 77, and authorities there cited; Girtman v Starbuck, 48 Fla. 265, 37 So. 731; 5 Am. & Eng. Ann. Cas. 833; Williams v. Clyatt, 53 Fla. 987, 43 So. 441; Koon v. Koon, 55 Fla. ----, 46 So. 633. As was held therein, a partition suit is not the proper proceeding in which to settle a disputed title, though, whenever the case is properly one of partition, one whose bona fide object is the partition of lands between common owners thereof, one or more of whom are complainants and the others are defendants, and they or some of them are in possession, then all controversies between them as to the legal title and right of possession may and should be settled by the chancellor, as authorized by the statute. However, as is also held therein, a suit for partition cannot be resorted to as a substitute for the action of ejectment, nor used for the sole purpose of testing a legal title. As is provided by section 1941 of the General Statutes of 1906, a bill in chancery for partition 'may be filed by any one or more of several joint tenants, tenants in common or...