Florida Finance Co. v. Sheffield

• Court: Florida Supreme Court
• Writing for the Court: PARKHILL, J.
• Citation: Florida Finance Co. v. Sheffield, 56 Fla. 285, 48 So. 42 (Fla. 1908)
• Decision Date: 19 December 1908
• Parties: FLORIDA FINANCE CO. v. SHEFFIELD.

48 So. 42

56 Fla. 285

FLORIDA FINANCE CO. v. SHEFFIELD.

Florida Supreme Court, Division B.

December 19, 1908

Headnotes Filed Jan. 30, 1909.

Error to Circuit Court, Taylor County; Bascom H. Palmer, Judge.

Ejectment by the Florida Finance Company, for the use of Fred W Haward, against J. M. Sheffield. There was a verdict for plaintiff, and, from an order granting a new trial, plaintiff brings error, affirmed. new trial, plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

A plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary's. He cannot recover as against one without title, unless he prove title or prior possession.

A plaintiff in ejectment cannot recover merely on the strength of a deed to himself, without showing that his grantor had a prima facie right to recover, and a mere deed unaccompanied by evidence of the grantor's seisin is not prima facie evidence of the grantor's title. He must trace his title back to the ultimate source of title or to a grantor in possession at or near the time of his grant.

Certified copies of deeds should not be admitted in evidence until the party offering them makes it to appear that the original deeds were not within his custody or control.

Where the defendant in an action of ejectment, or those under whom he claims, goes into actual possession of land purchased at tax sale under a tax deed regular on its face, but based upon a void assessment, such actual possession for the period of four years prescribed by section 591 of the General Statutes of 1906 prior to the bringing of the action will bar the suit.

COUNSEL Hendry & McKinnon, for defendant in error.

OPINION

PARKHILL J.

On the 1st day of January, 1908, the plaintiff in error instituted an action of ejectment against the defendant in error in the circuit court for Taylor county to recover the N.E. 1/4 of N.W. 1/4 and S.W. 1/4 OF N.W. 1/4 of section 35, township 2 S., range 6 E., containing 80 acres, and mesne profits. The defendant pleaded the general issue. On the 24th day of March, 1908, a trial was had, and the jury rendered a verdict for the plaintiff, being directed by the court so to do. Upon motion of defendant the court granted a new trial and the plaintiff sued out a writ of error, as authorized by section 1695 of the General States of 1906.

The motion for new trial is as follows:

'Now comes the defendant in the above stated cause by his attorneys, and moves the court to set aside the verdict in said cause and to grant him a new trial therein upon the following grounds, to wit:

'(1) Because said verdict is contrary to law.

'(2) Because said verdict is contrary to the evidence.

'(3) Because the court erred in admitting in evidence over the defendant's objection certified copy of deed from Jno. Alexander Graham to J. W. Lyman, dated June 9, 1890.

'(4) Because the court erred in admitting in evidence certified copy of deed dated January 26, 1901, from J. W. Lyman to G. S. Van Buskirk over the objection of the defendant.

'(5) Because the court erred in admitting in evidence over the defendant's objection final decree of foreclosure dated 11th day of August, A. D. 1898, and signed by John W. Malone, judge.

'(6) The court erred in admitting in evidence over the objection of the defendant master's deed from T. M. Puleston to Florida Finance Company.

'(7) The court erred in admitting in evidence certain transcripts of the tax records.

'(8) The court erred in instructing the jury that it was their duty to return a verdict for the plaintiff in so far as the ownership and right of possession of the land in dispute was concerned.

'(9) And for other good and sufficent reasons.'

'(9) And for other good and sufficient reasons.' prove plaintiff's title. The plaintiff deraigned its title from John A. Graham, and introduced in evidence, over defendant's objection, a deed from Graham to Lyman, dated June 9, 1890, another deed from Lyman to Van Buskirk, and a deed from Puleston, as master in chancery in foreclosure proceedings against Van Buskirk and others to the plaintiff. There was no evidence to show what right Graham had to convey the land, and the evidence did not show that plaintiff's grantors ever had possession of the land. The evidence tended to show possession in the defendant and those under whom he claimed.

A plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary's. He cannot recover as against one without title unless he prove title or prior possession. Burt v. Florida Southern R. Co., 43 Fla. 339, 31 So. 265. The plaintiff cannot recover merely on the strength of a deed to himself without showing that his grantor had a prima facie right to recover, and a mere deed, unaccompanied by evidence of the grantor's seisin, is not prima facie evidence of the grantor's title. He must trace his title back to the ultimate source of title, or to a grantor in possession at or near the time of his grant. Lake v. Hancock, 38 Fla. 53, 20 So. 811, 56 Am. St. Rep. 159; Dubois v. Holmes, 20 Fla. 834; Florida Southern R. Co. v. Burt, 36 Fla. 497, 18 So. 581.

The certified copies of the deeds from Graham to Lyman, and from Lyman to Van Buskirk, should not have been admitted in evidence until the plaintiff made it to appear that the original deeds were not within its custody or control. Bell v. Kendrick, 25 Fla. 778, 6 So. 868; Johnson v. Drew, 34 Fla. 130, 15 So. 780, 43 Am. St. Rep. 172.

The defendant relied upon a tax deed to W. G. Sheffield of May 12, 1902, and on mesne conveyances from Sheffield, and on actual possession of the land by himself and those under whom he claimed for more than four years before this suit was brought. Section 591 of the General Statutes of 1906 provides: 'When the purchaser of land at a tax sale goes into actual possession of such land, no suit for the recovery of the possession thereof shall be brought by the former owner or claimant, his heirs or assigns, or his or their legal representatives for the recovery of the possession of such land, unless such suit shall be commenced within four years after the purchaser at such tax sale goes into possession of the land so bought.'

The plaintiff introduced evidence tending to show that the tax deed was void because the assessment of the land was void, and claims that the foregoing statute of limitations does not apply for that reason.

Even though the tax deed be void because the assessment of the land was void, if the defendant or those under whom he claims went into actual possession of the land purchased at the tax sale, such actual possession for the statutory period prior to the origin of this suit will bar this suit. The court properly granted a new trial because of his error in striking the tax deed and withdrawing it from the consideration of the jury.

The tax deed under which the defendant claims is not void on its face. It gives the name of the grantee, the number of the tax certificate, the date of the tax sale for unpaid taxes for a stated year, the name in which the property was assessed, the amount paid for the certificates, a description of the land, besides the other recitals prescribed by the statute, and the execution thereof is in the prescribed form. Cowan v. Skinner, 52 Fla. 486, 42 So. 730.

Section 591 of the General Statutes of 1906 is a statute of limitations and begins to run, not from the date of sale nor from the recordation of the tax deed, but from the time actual possession of the land is taken under the deed.

In considering the provisions of a similar statute, the Supreme Court of Arkansas had this to say: 'But it does not follow because the sale was without notice and void that the plaintiff can now recover. * * * It has never been seriously doubted that in cases where the purchaser at a sale of land for the nonpayment of taxes takes actual possession of the land purchased, under a proper deed conveying said land to him, the Legislature may prescribe a period of limitation after the expiration of which the title of the original owner is barred. By the adverse possession of the purchaser, the owner is excluded from the possession of his premises, and notified that an adverse claimant, hostile to his interests, holds the land. Public policy no less than justice to the tax purchaser requires that he should bring his suit within a reasonable time, in order that all contested questions may be put at rest while the facts are recent and susceptible of proof.' Cooper v. Lee, 59 Ark. 460, 27 S.W. 970. See, also, Cofer v. Brooks, 20 Ark. 542.

In Pillow v. Roberts, 13 How. 472, 14 L.Ed. 228, the Supreme Court of the United States said: 'In order ot entitle the defendant to set up the bar of this statute after five years' adverse possession, he had only to show that he and those under whom he claimed held under a deed from a collector of the revenue of lands...