Ellis v. Clark

• Decision Date: 30 November 1897
• Citation: 23 So. 410,39 Fla. 714
• Parties: ELLIS v. CLARK et al.
• Court: Florida Supreme Court

23 So. 410

39 Fla. 714

ELLIS v. CLARK et al.

Florida Supreme Court

November 30, 1897^[1]

Error to circuit court, Holmes county; John W. Malone, Judge.

Action in ejectment by Joseph Ellis against Henrietta Clark and others. Verdict for defendants, new trial denied, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. A tax deed in form prescribed by statute, as well as a proper deed between parties, may convey title without being either acknowledged or recorded; and the objection to the admissibility of such a deed in evidence, on the ground that it did not appear therefrom that its execution had been acknowledged, or that it had been recorded, is properly overruled.

2. The delivery of a deed by the grantor, and its acceptance by the grantee, are essential to convey title.

3. When a grantor causes an acknowledged deed conferring substantial benefits on the grantee to be recorded, it will afford prima facie and strong presumptive evidence of a delivery to, and acceptance by, the grantee; but such presumption may be overcome by evidence that no delivery in fact was intended and none made.

4. A charge to the jury stating, in effect, that if a grantor delivered his deed for record, and the same was duly recorded, it devested the title out of him, notwithstanding any agreement between him and the grantee in reference to the delivery in fact, is erroneous, where there is testimony tending to show that no delivery was made and none was intended.

5. The failure to file and enter in the clerk's office the list of lands sold for taxes, as required by section 52, c. 3681, Laws 1887, will avoid a tax deed subsequently made in pursuance of such sale.

6. When a tax deed in proper form has been introduced in evidence in the defense, and the plaintiff submits testimony in rebuttal deemed sufficient to avoid it, the proper practice is not to move to strike out the deed, but request instructions from the court as to its validity or legal sufficiency.

COUNSEL

W. O. Butler, for plaintiff in error.

D. L McKinuon, for defendants in error. Plaintiff in error instituted an action of ejectment against defendants in error to recover possession of the N.W. 1/4 of N.W. 1/4 of section 28, and the N.E. 1/4 of N.W. 1/4 and N. 1/2 N.E. 1/4 of section 29, all in township 7 N., range 14 W., situated in Holmes county, and the decision was in favor of defendants.

To the declaration defendants Henrietta and Martha Clark filed the statutory plea of not guilty, and the other defendant alleged in his plea that he was not then, nor at the commencement of the suit, in possession of, nor did he then, nor at the commencement of the suit, claim any right, title, or interest in, the lands described in the declaration.

The plaintiff in error, without objection, introduced in evidence a patent to the lands sued for from the United States bearing date April 30, 1891, and recorded in the public records of Holmes county on the 27th of October, 1892. Plaintiff then testified that the lands then occupied by defendants had belonged to him for a great many years, and that he had paid taxes on said lands. He put in evidence a tax receipt for the year 1892 for the N.W. 1/4 of N.W. 1/4 section 28, and N.E. 1/4 of N.W. 1/4 and N.W. 1/4 of N.E. 1/4 section 29, all in township 7, range 14. On cross-examination, plaintiff stated that he had never sold the land to any one; that a great many years before that time he had sold a half interest in the land to one Loftin, but made him no deed, and he did not go into possession subsequently plaintiff bought back Loftin's half interest; and that this transaction occurred a great many years ago. The foundation was laid on the cross-examination for contradicting the plaintiff as to certain statements he had made to certain parties in reference to a sale of the land to Loftin. Jack Ellis, a son of the plaintiff, testified that he had known the land all his life and that his father had claimed title to the land ever since witness could remember. On cross-examination this witness stated that, to his knowledge, his father had never sold the land, and that he (witness) had never bought it, and that it belonged to his father. Nancy Ellis, wife of plaintiff, after being examined in chief, stated, on cross-examination, that she had never signed any deed to the land in dispute.

Defendants put in evidence the record of a deed signed by plaintiff and his wife to Jack Ellis for the lands in question, and also a deed from Jack Ellis to plaintiff for other lands. Both deeds are dated the 18th day of October, 1892, express the same consideration of $265, and are properly acknowledged before the clerk of the circuit court. There is on each deed the following indorsement, viz.: 'Recorded October 27th, 1892. A. D. Brownell, Clerk.'

Defendants also introduced witnesses who testified that they knew the general reputation of all three of the Ellises in the community in which they lived, and that their general reputation for truth and veracity was such that the witnesses would not believe them on oath.

Defendants further introduced a tax deed to W. H. Davis for one 40 of the land, to wit, N.W. 1/4 of N.E. 1/4 section 29, township 7 N., range 14 W., for an alleged default in paying taxes due thereon for the year 1887; and also a deed from W. H. Davis and wife to Henrietta and Martha Clark for the N.W. 1/4 of N.W. 1/4 section 28, and the N.E. 1/4 of N.E. 1/4 and N.W. 1/4 of N.E. 1/4 section 29, all in township 7 N., range 14 W. The tax deed is dated the 2d day of December, 1889, and the deed from Davis and wife bears date the 4th day of the same month, and neither one seems to have ever been acknowledged, though it appears that both were transcribed by the clerk of the circuit court on the public records of Holmes county. Objection was made to the tax deed that it did not appear from the deed that its execution had been acknowledged, and to the introduction of the other deed it was objected that it did not appear thereby that it had ever been delivered by the makers to the defendants, and because the execution of the deed had never been proven, and it had never been recorded. The execution of the deed from Davis and wife to the defendants named was then proven by a subscribing witness. The objections to both deeds were overruled, and the deeds admitted in evidence.

In rebuttal, plaintiff introduced certain evidence relating to the proceedings upon which the tax deed was based, a further reference to which will be found in the opinion.

Plaintiff testified that the deed from himself and wife to Jack Ellis was never delivered to the latter, nor was the deed from Jack Ellis to plaintiff ever delivered; that plaintiff had the deed he made in his possession, and he supposes Jack had his, and plaintiff did not have it; that they agreed upon an exchange of lands, and they made the deeds to each other so that, when plaintiff succeeded in getting the land sued for, he was to let his son have it, and they were then to exchange deeds; that they went to Cerro Gordo together, and had them put on record, but plaintiff took his deed home, and he supposes Jack took his. On cross-examination witness admits saying on the direct examination that he had never made any deed to the land, but he states that he overlooked the deed to Jack Ellis, as he had never delivered it; that he did say that he had not sold the land, and this was correct, as he had merely made an agreement of exchange of lands conditional upon his recovering the land in question. Jack Ellis also testified, in substance, the same as his father, with the additional statement that he had never gone into possession of the lands, had never claimed them, and that they were his father's. He also states that he did not deliver his deed because he did not propose to give up his land for that which was held by other parties, and which was in litigation.

The judge charged the jury that the defendants could set up an outstanding title in another as a complete defense, and that if they believed from the evidence that plaintiff sold and conveyed the land in dispute to another prior to the commencement of the suit, and the title thereto was in another at that time, they should find for defendants.

At the request of defendants, the court gave the following instruction to the jury, viz.: 'If you believe from the evidence that plaintiff made a deed to the land in dispute to his son, that the same has been duly recorded in the records of deeds of this county at the request of the son, and that he delivered it to the clerk for that purpose, and that the deed was executed before the institution of this suit, it took the legal title out of him, and he cannot recover in this suit, it matters not what private agreement there may have been between plaintiff and his son about the deed, and you will find for the defendants.'

Plaintiff moved for a new trial, among others, on the following grounds: That the verdict was contrary to the evidence; that the court erred in refusing to give the stated instruction asked by plaintiff; and that there was error in giving the instruction requested by defendants.

OPINION

MABRY, J. (after stating the facts).

Error is sought to be predicated upon the rulings of the court on the objections to the admissibility in evidence of the tax deed to Davis, and his deed to Henrietta and Martha Clark but we discover no error in the ruling. As shown by the statement, the specific objection made to the admissibility of the tax deed was that it did not appear from the deed itself that its execution had ever been acknowledged or proven. The deed appears on its face to have been executed by the circuit clerk under seal, in the presence of two witnesses, but...