Graves v. J.M. Harris & Bro.

• Decision Date: 26 March 1912
• Citation: 63 Fla. 169,58 So. 236
• Parties: GRAVES v. J. M. HARRIS & BRO.
• Court: Florida Supreme Court

58 So. 236

63 Fla. 169

GRAVES v. J. M. HARRIS & BRO.

Florida Supreme Court

March 26, 1912

Error to Circuit Court, Jackson County; J. E. Wolfe, Judge.

Action by Eunice Graves against J. M. Harris & Bro. Judgment for defendants, and plaintiff brings error. Reversed.

See also, 61 Fla. 254, 54 So. 390.

Syllabus by the Court

SYLLABUS

A contract for the lease of timber for turpentine purposes, and manufacturing naval stores for a term of ---- years purporting to convey an uncertain interest in and out of land, or for a term of more than two years, to be valid, must be signed, sealed, and delivered in the presence of two witnesses, as provided by section 2448, Gen. Stats. of 1906.

A writing signed, sealed, and delivered in the presence of one witness, which undertakes to sell and convey a turpentine still, three leases on timber made by a party having no apparent connection with the title to the land involved, is not proper evidence for the defendant in an action for damages to said land.

When a plaintiff in an action for damages to land acquires title to the same while the timber is being worked for turpentine and naval stores purposes under written license from the grantor of plaintiff, the latter can recover no damages for acts of the defendants in working the timber, done prior to notice to them, actual or constructive, of plaintiff's acquisition of title.

COUNSEL Calhoun & Campbell, of Marianna, for plaintiff in error.

Ellis Davis, of Marianna, for defendants in error.

OPINION

HOCKER J.

The plaintiff in error brought an action for damages against the defendants in error in the circuit court of Jackson county to the N.E. 1/4 of section 28, township 3, range 10 N. and W., in Jackson county, and for damages for cutting scraping, chipping, and boxing the pine trees thereon, for killing trees, etc., in the sum of $500, and also for damages committed on the same land for wrongfully boxing and scraping the valuable pine timber thereon and removing and appropriating turpentine of the value of $1,000. The plaintiff alleged ownership of the said land. The defendants pleaded not guilty, and other pleas equivalent to the plea of not guilty. The trial resulted in a verdict and judgment for the defendants, which is here for review on writ of error.

Eunice Graves, the plaintiff, introduced in evidence a warranty deed of said land made to her by R. L. Atkins and wife on the 1st of July, 1907, and recorded September 12, 1907. Plaintiff also produced J. M. Calhoun as a witness, who testified, in substance, that in the summer of 1909 he informed J. M. Harris, one of the members of the firm of Harris Bros., that the land was the property of Mrs. Graves, that she had a deed from Atkins, and that Harris afterwards left off working the land and rented the house for the balance of the year from witness, acting for Mr. Graves, for $11, and paid the rent in the fall. Witness also notified him not to cut and box the timber on the land any more. He stated that he witnessed the transfer of the lease from Braxton to J. M. Harris & Bro.

Plaintiff also introduced Floyd E. Whaley as a witness, who testified that he was the son-in-law of Mrs. Graves, who has never lived in Jackson county; only been in the county once on a visit. Witness has resided on the land involved in this suit since about January, 1910. Twenty acres of land cleared and in cultivation, and a small two-room house on it in which he lives. The balance of the land is in timber that has been boxed and worked. Witness had been working the timber since he has been on the place; sold the gum in 1910 for $4.50 a barrel in the woods. The timber has been scraped up four or five feet and Harris Bros. had back-boxed it, and started over the back-boxing before witness took charge. J. M. Harris told witness they had been working the timber for the last three or four years, and because much of the timber was small on account of the back-boxing, a large quantity had fallen down, damaging the other trees. The damage to the timber is about $200. The timber worked will produce about 35 barrels of gum, worth $4.50 a barrel.

W. J. McLeod, a witness for plaintiff, testified, in substance, that he knows the land involved as the Atkins place--Atkins' homestead on which he lived before he sold to Mrs. Graves, as his homestead--knows the land has been boxed and worked by Harris Bros. The witness who says he has been in the turpentine business near the land involved for six or seven years tells of the number of old boxes and back-boxes, the amount of scrape it ought to produce yearly, value, etc. He says that because of the boxing or cutting boxes so close on the small timber much has been blown down and destroyed.

J. L. Branch also testified that he had been in the turpentine business, rode the woods for two years for Harris Bros.; had these boxes worked; gives the number of boxes; 3,500 high boxes had been cut in the trees before Harris Bros. worked the land. They worked the boxes up to August, 1907, then quit, and resumed in January, 1908. He tells of the probable production and value of crude gum and scrape.

The plaintiff then rested.

The defendants offered in evidence what is called a bill of sale of two turpentine leases, one of W. F. Larramore and one of Nancy Maddox, executed by R. L. Atkins to James W. Braxton. This bill of sale is not dated, and does not describe any land at all. It was objected to for several reasons, one of which was that it was not acknowledged or proven. The objections were overruled, the instrument was read in evidence, and error is assigned on this ruling. It seems to us that there is error in this ruling.

The defendant then offered in evidence a...