Gould v. Carr

• Decision Date: 01 May 1894
• Citation: 15 So. 259,33 Fla. 523
• Parties: GOULD et al. v. CARR et al.
• Court: Florida Supreme Court

15 So. 259

33 Fla. 523

GOULD et al. v. CARR et al.

Florida Supreme Court

May 1, 1894

Appeal from circuit court, St. Johns county; James M. Baker, Judge.

Ejectment by James M. Gould, for the use of Jacob Vanderpool, against Henry and Wiley Jenkins, and Henry Emmerly and J. T. Carr executors of Delphi Emmerly. Said Gould and Vanderpool having died, Rutledge Gould and others, heirs at law, and George Vanderpool, administrator, were made parties plaintiff. From a judgment for defendants, plaintiffs appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. The establishment of a uniform rule, by the commissioners acting under the act of congress for the collection of direct taxes that they would receive such taxes from no one but the owner of the land in person, avoids a sale by said commissioners under such proceedings, and a tender of the taxes was made unnecessary by such a rule.

2. The possession necessary to confer title under an adverse holding must be actual, continuous, and adverse to the legal title for the statutory period to bar the suit, and the adverse possessor must not yield or surrender his possession under the pressure of any legal procedure instituted to oust him which he can successfully resist; and if he does so, and an entry adverse to him is made, the continuity of his possession will be broken. Contra, as to adverse possession interrupted by force or violence, and promptly regained by legal methods. Townsend v. Edwards, 6 South. 212, 25 Fla. 582, examined and limited.

3. At common law, the death of a sole plaintiff in real actions before judgment abated the suit, and such actions can only be revived in the name of the heir at law in whose favor a new cause of action arises upon the death of the ancestor by legislative authority.

4. The act of November, 1828 (section 77, p. 830, McClel. Dig.) declaring what actions shall die with the person and what shall survive, provides that those that do survive may be maintained in the names of the representatives of the deceased. Real actions are among those that survive the death of a plaintiff; and under rules 94 and 95, specially made for the government of circuit courts in actions of ejectment, such an action may be revived in the names of the heirs at law.

COUNSEL

Rude & Dewhurst, for appellants.

H Bisbee, for appellees. A suit of ejectment was instituted on the 3d day of January, 1876, in the circuit court for St. Johns county, by James M. Gould, for the use of Jacob Vanderpool, against Henry and Wiley Jenkins, to recover possession of a certain described lot of land situated in the city of St. Augustine, in said county.

The plea of not guilty, and also a further plea that neither the plaintiff, his ancestor, predecessor, or grantor, had been seized or possessed of the premises in question within seven years before the commencement of the suit, were filed by the named defendants on the rule day in March, 1876, and no further proceedings were had in the case till February, 1889. Notice was served on counsel for defendants on the 16th day of February, 1889, that application would be made to the circuit judge on the 25th day of that month for an order making George B. Vanderpool, administrator of the estate of Jacob Vanderpool, deceased, and Rutledge Gould, Edward Gould, James Gould, Hester Flynt, Sarah Gould, and Lydia Gould, ehirs at law of James M. Gould, deceased, plaintiffs in said suit, upon the suggestion of the deaths of the original plaintiffs. An order was made on the 26th of the same month, reciting that the deaths of James M. Gould and Jacob Vanderpool had been suggested, and that a certified copy of the letters of administration granted to George B. Vanderpool on the estate of Jacob Vanderpool, deceased, had been filed, and directing that the said heirs at law of James M. Gould, deceased, be made parties plaintiff in the suit in place of the said decedent Gould, and that George B. Vanderpool, administrator, be made party plaintiff in place of Jacob Vanderpool, deceased.

Subsequently the cause was referred to John C. Cooper, Esq., an attorney at law, as referee, for trial, and the following agreement in writing, signed by counsel for plaintiffs and defendants, was filed in the case with the referee, viz:

'In Circuit Court, St. Johns County. Rutledge Gould et al., for Use of Geo. B. Vanderpool, Admr., &c., vs. Henry Jenkins, Wiley Jenkins, Henry Emmerly and John T. Carr, Executors, &c., of the Estate of Delphi Emmerly. Stipulation of Parties.

'It is hereby stipulated and agreed by the parties to the above action as follows, to wit:

'First. That the lands and premises in controversy in said action were sold in December, A. D. 1863, for taxes under the direct tax laws of the United States of America then in force; that at said sale James W. Allen became the purchaser, to whom a certificate of purchase was issued by the tax commissioners under said laws; and that on or about January 4, 1864, the said James W. Allen, for value received, assigned and transferred such certificate to one Edmund Hill, who was at once admitted to the possession of the said lands and premises by the said Allen. This admission shall not prejudice the plaintiffs from making proof of any fact or facts that will impeach the validity of such sale.

'Second. That Edmund Hill, on or about the 16th of April, A. D. 1881, being then in full possession, executed and delivered to Delphi Emmerly, his daughter, a deed of conveyance of the said lands and premises, whereby all the right, title, interest, and estate of said Hill in said lands were conveyed to said Emmerly; that under such conveyance the said Emmerly was let into the possession of said lands and premises, and held the possession thereof until she died, to wit, 16th day of February, 1886.

'Third. That on the 22d day of December, A. D. 1885, Delphi Emmerly duly executed her last will and testament, whereby she devised the said lands and premises to her two children, Edward M. Thomas and E. M. Emmerly; that by said will the defendants Henry M. Emmerly and John T. Carr were duly appointed executors thereof, and that they duly qualified as such executors on the --- day of -----, A. D. 1886, and thereupon entered upon the discharge of their duties as such executors; that said will was duly admitted to probate in the proper office, and was properly executed.

'Fourth. That Edmund Hill died before the death of the said Delphi Emmerly.

'Sixth. That the plaintiffs, who sue for the use of Geo. B. Vanderpool, as administrator of Jacob Vanderpool, are the lawful heirs at law of James M. Gould, and that on and prior to December 21, 1863, the said James M. Gould was lawfully in possession of the said land and premises under a valid claim of title as sole heir of Elias B. Gould, deceased.

'Seventh. That James M. Gould and Jacob Vanderpool are dead, and that Geo. B. Vanderpool is the duly-constituted administrator of the estate of the said Jacob Vanderpool, deceased.

'Eighth. That on or about the 13th day of March, A. D. 1870, the said James M. Gould executed and delivered to Jacob Vanderpool a deed of conveyance of said lands and premises, and that, at the time of the execution and delivery of said deed, Edmund Hill was in the possession of the said lands and premises, claiming adversely and in hostility to the title of the said James M. Gould, who conveyed all his right, title, and interest in the lands to said Vanderpool.

'Ninth. That John T. Carr and Henry M. Emmerly, as executors, etc., shall duly appear and be made parties defendant to said action before the trial thereof.'

In compliance with the stipulation, Henry M. Emmerly and John T. Carr, as executors of the will of Delphi Emmerly, deceased, appeared, and filed a plea of not guilty.

The second plea of the defendants Henry and Wiley Jenkins, setting up the statute of limitations, was stricken out by the referee on motion of plaintiffs, on the ground that such defense could be proven under the general issue, and, upon final hearing, judgment was rendered in favor of defendants. Plaintiffs appealed to this court.

The other facts necessary to be stated will appear in the opinion of the court.

OPINION

MABRY, J. (after stating the facts).

It appears from the admitted facts and the testimony in this case that James M. Gould, as sole heir of Elias Gould deceased, was rightful owner and in possession of the lot of land in question on the 21st day of December, 1863, and that the lot was sold in that month, under the direct tax laws of the United States, to James W. Allen, who received a certificate of purchase from the tax commissioners, and in January, 1864, conveyed the lot to Edmund Hill. Hill immediately took possession of the lot under his purchase from Allen, and remained in possession until the 30th day of October, 1871, when he was dispossessed by the sheriff of St. Johns county by virtue of a writ of possession based upon a judgment in ejectment for the possession of said lot, rendered on the 25th day of that month, in favor of Jacob Vanderpool, and against Hill. Vanderpool's action of ejectment was based upon a deed of conveyance of the lot to him from James M. Gould, bearing date March 13, 1870; but it is conceded that, at the time of Gould's conveyance to Vanderpool, Hill was in the actual, adverse, and hostile posession of the lot. After Vanderpool had been put into possession, which, it appears, was five days after the rendition of the judgment in ejectment, Hill prosecuted an appeal to this court, and succeeded in having the judgment reversed, and a new trial awarded. Hill v. Vanderpool, 15 Fla. 128. After the reversal of the judgment, Hill was restored to the possession of the lot on the 9th day of June, 1875, by virtue of a...