Euse v. Gibbs

• Decision Date: 09 January 1951
• Citation: 49 So.2d 843
• Parties: EUSE et al. v. GIBBS et al.
• Court: Florida Supreme Court

Page 843

49 So.2d 843

EUSE et al. v. GIBBS et al.

Supreme Court of Florida, en Banc.

Jan. 9, 1951.

Rehearing Denied Jan. 24, 1951.

Maynard Ramsey, Tampa, for appellants.

Hampton, Bull & Crom and John R. Himes, all of Tampa, for appellees.

SEBRING, Chief Justice.

The appeal is from a final decree entered in favor of the plaintiffs in a suit involving the boundary line between two contiguious tracts of property.

In 1924 one Cook deeded to Euse, the defendant below, a 20-acre tract of land described in the deed as the East Half of the Northwest quarter of the Northwest quarter of section 36, Township 27 South, Range 18 East, being twenty acres more or less. The following year one Keubler conveyed to Euse the title to an adjoining 20-acre tract of land, described in the deed as the West Half of the Northwest quarter of the Northwest quarter of section 36, Township 27 South, Range 18 East, being twenty acres more or less. In 1931 Euse deeded the westerly 20-acre tract acquired from Keubler to Frank J. Costa and Maybelle Henock Costa, his wife. By agreement between Cook and Euse and Keubler and Euse, grantors and grantee in the original conveyances, and by agreement between Euse and Costa and wife, grantor and grantees in the conveyance executed in 1931, an existing fence line which ran between the tracts of land was fixed by the parties as the common boundary line between the properties. As will be noticed later, the fence line fixed by common consent as the boundary line was some 64 feet west of the true line between the properties.

In 1938 Costa entered into an agreement to deed the west 20-acre tract of land to one Greenlee; the agreement describing the property to be conveyed as the West Half of the Northwest quarter of the Northwest quarter of section 36, Township 27 South, Range 18 East, being twenty acres more or less. Sometime between 1938 and 1942 the west tract of land reverted to the State of Florida for non-payment of taxes and in 1941 a tax deed issued on the property. In the same year the tax deed holder sold his interest in the property to Costa, the holder of the former legal title, and in 1942 Costa conveyed title to the property to Greenlee pursuant to the agreement for deed. In 1947 Greenlee and wife conveyed the property acquired from Costa to the appellee Lola J. Gibbs and the latter went into possession.

At all times between the date of his purchase of the east 20-acre tract in 1924 and the institution of this suit, the appellant Euse remained in possession of all property east of the boundary line fence, claiming the entire area as his own by reason of the deed given him by the grantor Cook and by virtue of the existing agreements that the fence line should constitute the west boundary line of the property. During this period of time Euse regularly returned, and paid taxes on, the East Half of the Northwest quarter of the Northwest quarter of section 36 but never filed a separate return on the 64-foot strip of land which lay between the true line and the fence line that had been established as the boundary line between the adjoining 20-acre tracts.

In 1949 Lola Gibbs caused the property described in her deed to be surveyed by a duly licensed surveyor. She learned from the survey that the fence line was not on the true line but lay some 50 to 65 feet west of the true line between the properties. She thereupon sought to take possession of the property up to the true line by attempting to erect a temporary fence along the true line. The defendant Euse resisted her efforts by a show of force and she then brought the present suit, praying in her bill that the court decree that Euse had no interest in the strip of property and that he be enjoined from interfering with or molesting her in the enjoyment, occupation and use thereof.

Evidence was submitted on the issues made by bill and answer and at final hearing the trial court rendered a decree containing, in substance, the following findings: (1) When, on August 4, 1931, Costa acquired his deed from Euse to the property which had been conveyed by Keubler to Euse and which was described as the West Half of the Northwest quarter of the Northwest quarter of Section 36, Township 27 South, Range 18 East, being twenty acres more or less, the legal title to the entire 20-acre tract, including the strip of land in controversy, passed to Costa; (2) at the time of the conveyance of the title by Euse to Costa both Euse and Costa agreed that the eastern boundary of the tract conveyed by the deed was marked and fixed by the fence line, and as the result of this agreement Costa went into actual physical possession of only so much of the 20-acre tract as was located west of the fence line; (3) Costa and his successors in title acquiesced for more than 27 years in Euse's actual possession, occupancy, and use of the strip of land lying east of the fence line; (4) by reason of his actual possession, occupancy and use of the strip of land in controversy for a period of 7 years after the execution of the Costa deed, Euse, on August 4, 1938, acquired title to the controverted strip by adverse possession; (5) when the tax deed to the West Half of the Northwest quarter of the Northwest quarter of Section 36 issued in 1941 it cut off Euse's title to this strip of land acquired by adverse possession just as it extinguished Costa's legal title to the remainder of the 20-acre tract, and it vested in the holder of the tax deed, a new, paramount and independent title from the State of Florida to the whole of the 20-acre tract; (6) the new and independent title acquired by the tax deed holder to the whole of the 20-acre tract was subsequently conveyed by the holder to Costa in 1941 and by mesne conveyances became vested in the plaintiff, Lola J. Gibbs, in 1947; (7) during the 27-year period of occupancy of the disputed strip of land by Euse the latter never returned the strip of land for taxation and never paid taxes thereon; (8) due to the fact that Euse did not pay taxes on this strip of...