Florida Southern R. Co. v. Loring

• Decision Date: 20 June 1892
• Docket Number: 29.
• Parties: FLORIDA SOUTHERN R. CO. v. LORING.
• Court: U.S. Court of Appeals — Fifth Circuit

51 F. 932

FLORIDA SOUTHERN R. CO. v. LORING.

No. 29.

United States Court of Appeals, Fifth Circuit.

June 20, 1892

John Wurts, for plaintiff in error.

H Bisbee, for defendant in error.

Before McCORMICK, Circuit Judge, and LOCKE and BILLINGS, District judges.

McCORMICK Circuit Judge.

This is an action of ejectment. Declaration is in the usual form. The plea is not guilty, which puts in issue the title to the land in controversy. The action was brought by defendant in error in the circuit court of the northern district of Florida, and trial had in that court, January 6, 1892, the district judge Hon. Charles SWAYNE presiding, which resulted in a verdict and judgment in favor of defendant in error. The defendant in ejectment sued out this writ of error, and has filed an assignment of errors, with 14 separate specifications. The first six relate to the action of the trial judge in the admission of testimony over the objection of plaintiff in error. On the record as brought up to us, it does not appear that the action of the trial judge was erroneous in admitting the evidence. The other eight specifications of error relate to charges given and to requested charges refused. We will not consider them separately. They may be easily resolved into two: First, that the judge erred in instructing the jury that the plaintiff in ejectment had by the evidence made out a prima facie case of title to the lots in controversy; second that the defendant in ejectment could not defeat the plaintiff's prima facie evidence of title by showing it had held seven years' possession of the premises, unless the proof satisfied the jury that the possession had been so held with the knowledge of the plaintiff. The plaintiff read in evidence deeds which made a chain of paper title back for many years, but not to the sovereignty of the soil. The only proof that any of the grantors in these deeds were ever in possession of the premises sued for was certain recitations in one of the deeds, and evidence that the premises were a part of what was known as the 'Palatka Tract;' and that the corporate limits of the town of Palatka were the boundaries of the Palatka grant, which grant embraces 1,220 acres, more or less; that plaintiff had possession of the deeds, and had paid taxes. No length of chain of paper title which does not reach the sovereignty of the soil is sufficient of itself to constitute prima facie evidence of title.

There must, in addition, be proof that satisfies the jury that at least one of the grantors in this chain of deeds had been in possession of the premises, where the chain does not reach back to the sovereignty, before the defendant in possession can be required to defend his possession. It is certainly the province of the judge to construe written instruments given in evidence, and instruct the jury as to their legal effect and as to how far parties and privies are bound by the recitals in deeds or other writings. If recitals in ancient instruments can be used against strangers, their probative force is not to be weighed by the judge merely because they are a part of a deed, but must, under proper instructions, be submitted to the jury. The mere possession of deeds and the payment of taxes do not, as matter of law, show possession of the land conveyed. Dubois v. Holmes, 20 Fla. 834; Tyl. Ej. 541; 1 Phil.Ev. 356, and note 3.

The land sued for was two blocks in an incorporated town. It is urged by the counsel for defendant in error in his oral argument that the town is a populous one, with many persons holding possession under grants from plaintiff's grantors. If it be conceded that such evidence tends to show that the grantors must have had possession, it ca-not withdraw this issue of fact from the jury. We are of opinion that in withdrawing this issue of fact from the jury the learned trial judge erred. The defendant in ejectment proved that it constructed its railroad on the land sued for...