Florida Southern Ry. Co. v. Burt

• Decision Date: 29 November 1895
• Parties: FLORIDA SOUTHERN RY. CO. v. BURT.
• Court: Florida Supreme Court

18 So. 581

36 Fla. 497

FLORIDA SOUTHERN RY. CO. v. BURT.

Florida Supreme Court

November 29, 1895

Error to circuit court, Putnam county; J. J. Finley, Judge.

Action by George Burt against the Florida Southern Railway Company. On the death of plaintiff, Anna G. Burt, his administratrix was substituted. Judgment for plaintiff. Defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. A deed without any evidence of the possession by the grantor of the premises conveyed is not sufficient evidence of title to warrant a recovery in an action of ejectment. The giving of a deed to the premises is no evidence of title in the grantor.

2. In an action of ejectment, where the reliance of the plaintiff is exclusively upon a paper title, it is not sufficient to show possession by a grantor at some remote period, but he must have been in possession at or near the time of the execution of the deed by him.

3. In such a case it is necessary for the plaintiff to trace his title back to the ultimate source of title, or to a grantor in actual possession.

4. It is extremely doubtful whether testimony in haec verba that a party was in possession of land is of any weight. Possession may often be a matter of opinion. In proving possession of land the facts should be shown which in law constitute possession.

5. Recitals in deeds do not bind strangers holding adversely and claiming title by adverse possession. The making of contracts to sell land is not of itself evidence of possession.

COUNSEL R. W. & W. M. Davis and T. M. Day, Jr., for plaintiff in error.

W. W Dewhurst, for defendant in error.

OPINION

LIDDON, J.

George Burt, the intestate of the defendant in error, recovered a judgment in ejectment against the plaintiff in error. Subsequent to the removal of the case to this court he died and his administratrix has here been made a party to the proceedings.

The declaration pleaded to was in the ordinary statutory form and pleas (1) of not guilty, and (2) denying possession of the premises, were filed. The trial was had upon issues joined upon these pleas.

The plaintiff in error contends that the verdict and judgment against it in the circuit court was without evidence to support it. Upon this point it is insisted that the plaintiff in the court below did not show sufficient evidence of a title to the land in dispute. The property in controversy was portions of certain blocks of land described as being in the city of Palatka, and bounded by certain named streets of said city. The testimony shows that they were all situated without the more thickly inhabited portions of the city, and were wholly uninhabited, uninclosed, and were not cultivated or improved in any manner whatever, unless, perhaps, by the building of the railroad of the defendant upon a portion of them, and on account of the eviction of which the suit was brought. The streets, or most of them, in the immediate vicinity of the blocks sued for, were streets existing only upon a map, or streets in name only, the adjoining properties not being built upon, and the streets themselves not being to any appreciable extent, improved or adapted for use, or used as public highways. The plaintiff offered in evidence a deed of one James Burt to himself, and several other deeds, as a chain of title, but not reaching back to the sovereignty in the soil. The plaintiff himself had never been in actual possession, and stated that no one was upon the lots at the time he purchased them.

The only claim by counsel for defendant in error as to direct proof of possession in any of his grantors is as to James Burt, his brother, and immediate grantor. The deed of James Burt to the plaintiff was executed August 3, 1858. The plaintiff testified as follows: 'Question. Has any one ever disputed your right to the possession up to the time of your controversy with the railroad company, or claimed title against you? Answer. No, sir.' On further examination, as follows: 'Question. Do you know whether your brother was in possession of these lands before he sold them to you, and whether he paid taxes upon them? Answer. Yes, sir; he paid taxes. I presume so from the fact of never hearing anything about the taxes.' It is not by any means clear that the witness intended to say that his brother was ever in possession of the lands. Admitting that the affirmation 'yes, sir,' applies to the whole question, and not to the latter part of it in reference to the payment of taxes, it is not a direct assertion of possession. The question was only if he knew whether his brother was in possession, and the witness affirms that he has knowledge upon the subject, without stating the matters of such knowledge. The evidence is seriously defective as to the point of time of the brother's possession. If we concede that the witness swore that his brother was in possession, what was the date of such possession? He is only shown to have been in possession before the sale to the witness. He is not shown to have been in possession at or near the time of such sale. It might have been many years before the sale that he was in such possession, and his possession may have ceased many years before the sale. It is not shown that he was in possession after the deed to him shown...