Farrington v. Greer

• Decision Date: 01 August 1927
• Citation: Farrington v. Greer, 94 Fla. 457, 113 So. 722 (Fla. 1927)
• Parties: FARRINGTON v. GREER et al.
• Court: Florida Supreme Court

113 So. 722

94 Fla. 457

FARRINGTON v. GREER et al.

Florida Supreme Court, Division A.

August 1, 1927

Error to Circuit Court, Broward County; C. E. Chillingworth, Judge.

Ejectment by C. E. Farrington against Fletcher Greer and husband. Judgment for defendants, and plaintiff brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Bona fide possessor, ousted by trespasser, may recover on proof of prior possession; bona fide possessor, to recover against trespasser ousting him, need not have prescriptive title by adverse possession. Where a party, who is in peaceable, bona fide, and actual possession of land with a present right of continued possession, is ousted by a bare trespasser or intruder who enters without any right or claim of title, the ousted party may recover upon proof of his prior possession only, and it is not essential to such recovery that such possession should have been held for the time required by the statute to acquire a prescriptive title by adverse possession.

Prior possession or occupancy without title gives enforceable possessory rights against one having no better title or right; party recovering against intruder because of proper prior possession recovers as much on strength of title as if he shows good title. As against one having no better title or right, prior possession or occupancy without title confers upon the occupant certain enforceable possessory rights in the land, and the plaintiff who recovers against a mere intruder by virtue of proper prior possession recovers, under those circumstances, as much upon the strength of his own title as if he shows a good title to the premises.

Deed by claimant out of possession is inoperative against party in possession and his privies, though good as between grantor and grantee, and as to all others. A deed executed by a grantor out of possession, when the lands are held adversely by another, is void and inoperative as to the party in adverse possession, and his privies, although such a deed is good as between the grantor and grantee, and as to all other persons.

Modern common law as to champertous conveyances is not so rigorous or inflexible nor always attended by same result as early common law. The modern application of the common-law doctrine pertaining to champertous conveyances is not so rigorous or inflexible, nor is it always attended by the same result, as it was under the early common law.

Deed by grantor out of possession does not now convey legal title and seisin or right of entry on which grantee may sue in own name against one holding actual seisin (Rev. Gen. St. 1920, § 3795). The effect of the common-law doctrine relating to champertous conveyances, as now applied, is that such a deed is inoperative to convey legal title and seisin, or a right of entry, upon which the grantee may maintain an action in his own name against one who has actual seisin.

Common-law doctrine prohibiting grantor out of possession from conveying title was established to defend lawful possessory rights. The common-law doctrine pertaining to champertous conveyances was established, not for offensive purposes, but for the defense of lawful possessory rights.

Deed by grantor out of possesssion gives grantee no right of entry nor right to sue in his own name for possession; grantee of grantor out of possession obtaining possession peaceably may set up grantor's title preventing former disseisor recovering in real action unless he can show title better than grantee's; disseisor without title on mere showing of former adverse possession cannot recover from grantee who has peaceably gained possession of disseised grantor (Rev Gen. St. 1920, § 3795). Although a deed executed by a grantor out of possession is void as to the disseisor in that it gives to the grantee no right of entry nor right of action in the name of such grantee to recover possession from the disseisor, yet if such grantee peaceably, lawfully, and without fraud, deceit, artifice, or force, or the display thereof, enters under such deed and obtains possession of the land, such grantee may avail himself of the title of his grantor, and, by uniting that title with his own possession thus acquired, may thereby complete in himself a title against which the former disseisor may not recover in a real action in which the latter is actor and in which the validity of the title is directly in issue, unless such disseisor can show a better title than that of the grantee so in possession. Under the circumstances stated, a disseisor without title, cannot recover from the grantee upon a mere showing of former adverse possession.

COUNSEL

Thomas M. Lockhart, of Chattanooga, Tenn., for plaintiff in error.

Maxwell Baxter, of Ft. Lauderdale, for defendants in error.

OPINION

STRUM J.

Plaintiff in error, as plaintiff below, brought an action of ejectment against defendants in error. The declaration was in the statutory form. The issue tried was upon the plea of not guilty. At the conclusion of the testimony the court directed a verdict for defendants and plaintiff took writ of error. Questions other than those now presented were disposed of upon a writ of error to a previous judgment. See Greer v. Farrington, 86 Fla. 243, 97 So. 384.

The property in question consists of four 25-foot lots in the city of Ft. Lauderdale, situate on the corner of Island, or Middle, street and West avenue.

At the trial plaintiff made no effort to deraign title in himself, either from an original source or from a grantor having possession and the right to convey the title. Plaintiff relied for his recovery solely upon a showing of prior possession in himself under color of title, which possession admittedly had not continued for a sufficient period to mature into title by adverse possession. Plaintiff contends, however, that such prior possession was sufficient to support his recovery as against these defendants because the latter, when they entered, were mere trespassers or intruders, strangers to the title, and that his possessory right in the lands was therefore superior to that of defendants.

Plaintiff introduced in evidence a quitclaim deed dated September 31, 1920, by which the Sun Land Company quitclaimed the lands in question to plaintiff, and under which deed plaintiff immediately went into possession. The source of title of Sun Land Company was excluded from the evidence on objection of plaintiff, but was apparently based upon a tax deed issued by the city of Ft. Lauderdale.

Plaintiff's testimony discloses that when he entered the lands under the quitclaim deed, the lands were unoccupied and had remained so for about 2 years previously; that plaintiff cut down the weeds thereon, which were 'tall and cumbersome,' planted divers fruit trees on the land, moved his chicken coops thereon, plaintiff's dwelling being located upon an adjoining tract--kept his cow on the land in question, and used it for a milking place morning and night. Upon the land in question was an old and somewhat decrepit building in which plaintiff stored chicken and cow feed, several gallons of paint, and the plaintiff also used the building for storage of bean hampers and for the sorting and storage of vegetables received from time to time from plaintiff's farm, as well as for the storage of certain papers and files from his law office. Plaintiff also kept his bicycle, and those of his two children, in the building aforesaid, and upon the land he stored a quantity of building tile, Plaintiff testified without objection that his possession was 'open and notorious,' and that he claimed the land as his own; that he paid cerain delinquent taxes and paving liens against the property, although defendants have paid the taxes, save in one instance, since the latter entered the land.

About six months after the plaintiff thus went into possession, and while his possession of the character stated continued, the defendants 'very early one morning,' with some workmen, entered upon the lands and dispossessed plaintiff. The plaintiff thus describes the entry of the defendants upon the lands:

'I was in possession of it (the land) at the time the defendant entered on the property. I did not give him permission to move on the property and don't know why he moved on it. One morning very early I heard some noise over there and I looked out and he was there. I didn't know defendant at the time. There were some workmen walking and moving around, working about the house, that was the first I ever knew of it.'

Plaintiff further testified that he ceased to occupy the land after the defendant thus took possession. It appears from the testimony that defendant's entry, though it was without plaintiff's permission, was effected in a peaceable manner. There was no breaking, no force nor the display thereof, no breach of the peace, and there is no showing of fraud or deceit.

Plaintiff thereafter brought this action to recover his former possession.

To support their plea, the defendants deraigned a record title to the lands from the trustees of the internal improvement fund, through mesne conveyances, into one Nathan B. Rader, and by warranty deed from Rader to Mrs. Fletcher Greer, one of the defendants, and the wife of the other defendant, William Greer. Plaintiff moved to strike the latter deed upon the ground that it was void as to plaintiff because, when the deed was executed on April 1, 1921, the plaintiff, and not the grantor in said deed, was in actual and adverse possession of the lands described in the deed, and that as between the plaintiff and the defendants, the latter were therefore mere trespassers or intruders, and strangers to the title. The motion was denied.

In this state the doctrine obtains that where a party, who is in peaceable,...