Harris v. Butler

• Decision Date: 19 October 1906
• Citation: 42 So. 186,52 Fla. 253
• Parties: HARRIS v. BUTLER.
• Court: Florida Supreme Court

42 So. 186

52 Fla. 253

HARRIS v. BUTLER.

Florida Supreme Court, Division A.

October 19, 1906

Error to Circuit Court, Holmes County.

Action by G. H. Harris against W. O. Butler. Judgment for defendant and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where the defendant in ejectment is in actual possession of the land in controversy, the plaintiff cannot recover, when he fails to show legal title in himself or that he was in prior actual possession of the land and was ousted by the defendant.

In an action of ejectment, where the plaintiff offers no documentary evidence of title, but simply presents testimony that the land was reported to belong to him, that he paid for and got a deed to the land, that the deed was recorded and lost and the record of it destroyed by fire, that he exercised acts of ownership over the land, paid taxes on it and had an agent look out for it and report any trespassing on it, that he lives nearly 12 miles from the land, and makes no showing that he actually occupied any part of the land, or that he cultivated or improved it, or that he fenced or used it for the ordinary use of an occupant, judgment is properly entered for the defendant.

COUNSEL D. L. McKinnon, for plaintiff in error.

W. O Butler, pro se.

OPINION

WHITFIELD J.

On November 2, 1898, the plaintiff in error brought an action of ejectment in the circuit court for Holmes county against the defendant in error to recover the E. 1/2 of S.E 1/4 of section 7, township 6 N., range 14 W., containing about 80 acres of land, in Holmes county, Fla., alleged to be in the possession of the defendant. The defendant pleaded the general issue. A jury was waived, and the trial was had before the judge, who found for the defendant. A motion for new trial was made, the grounds being: '(1) The finding is contrary to the evidence, the weight of the evidence, and contrary to law. (2) The finding is without evidence to support it, as the plaintiff showed possession for more than seven years under a lost deed, prior to the claim of the defendant, and defendant introduced no evidence whatever to sustain his claim or disprove the possession and title of the plaintiff. (3) The court erred in finding for the defendant, whom the evidence shows to have been a trespasser without the show of title, while the evidence shows that the plaintiff took possession under color of title.' The motion being overruled, an exception was taken. Judgment was entered for the defendant, and the plaintiff upon writ of error assigns as errors: (1) The finding in favor of defendant and entering judgment against the plaintiff. (2) The denial of the motion for a new trial on each of the several grounds therein stated.

The declaration alleged, and under the statute the plea of the general issue admitted, that the defendant was in possession of the land described in the declaration.

Where the defendant in ejectment is in actual possession of the land in controversy, the plaintiff cannot recover when he fails to show legal title in himself or that he was in prior actual possession of the land and was ousted by the defendant. See Hartley v. Ferrell, 9 Fla. 374; Seymour v. Creswell, 18 Fla. 29; Simmons v. Spratt, 20 Fla. 495; Ashmead v. Wilson, 22 Fla. 255; L'Engle v. Reed, 27 Fla. 345, 9 So. 213; Florida Southern Ry. Co. v. Burt, 36 Fla. 497, 18 So. 581; Godwin v. Markwell, 37 Fla. 464, 19 So. 885; Jackson v. Haisley, 35 Fla. 587, 17 So. 631.

In this case no deeds or other instruments conveying title were introduced in evidence. The depositions taken in 1901 of several witnesses for the plaintiff were put in evidence without objection. In one of the depositions the plaintiff testified that he knew the location of the land, and had known it about 17 years; that it was reported to belong to him; that he paid for and had a deed to the land; that the deed was property recorded, but it had been lost, and the record of it destroyed by fire; that he went into possession of the land under his said deed about 1883, and exercised acts of ownership over the land, paid taxes on it, and had an agent to look out for it and to report any trespassing on it that he made the improvements to be in possession of the land, the nature of the...