Jackson v. Haisley

• Decision Date: 21 May 1895
• Citation: 17 So. 631,35 Fla. 587
• Parties: JACKSON et al. v. HAISLEY et al.
• Court: Florida Supreme Court

17 So. 631

35 Fla. 587

JACKSON et al. v. HAISLEY et al.

Florida Supreme Court

May, 21, 1895

Appeal from circuit court, Marion county; J. J. Finley, Judge.

Action in ejectment by Elizabeth Jackson and another against Julia S. Haisley and another. Defendants had judgment, and plaintiffs appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. By the attestation clause of a deed it appeared that the same was 'signed, sealed, and delivered' in the presence of two witnesses. One of the subscribing witnesses, making affidavit for the purpose of having the deed admitted to record, only swore that he saw the grantor 'sign' the same, and 'acknowledged that he did so for the purpose therein mentioned,' and that affiant and the other subscribing witness 'signed the same as witnesses.' Construing this affidavit, together with the attestation, it sufficiently proves the execution of the deed to admit it to record.

2. It is not the policy of the law to nullify records wherever substance is found, and obvious clerical errors and technical omissions should be disregarded. A substantial compliance with the statute is sufficient.

3. It is error in an action of ejectment to exclude from the jury evidence which tends to show a prior possession upon the part of the plaintiff.

4. Where a party in peaceable possession of land is ousted by a bare trespasser, who enters without any right or claim of title, the ousted party may recover upon proof of prior possession; and it is not necessary for such recovery that such possession should have been held for the time and in the manner required by the statute for a prescriptive title.

5. In an action of ejectment, where the defendant offers no proof of title beyond a mere naked possession, it is not 'necessary for the plaintiff to show, by competent evidence, an unbroken chain of title from the government down to the plaintiff, in order to recover the premises'; and such an instruction to the jury was erroneous.

COUNSEL R. L. Anderson, for appellants.

Thos F. King and Henderson & Raney, for appellees.

OPINION

LIDDON, J.

The case below was an action of ejectment brought by appellants against appellees. The verdict and judgment were for the defendants. The property in dispute were certain lots in the town of Ocala.

Among other assignments of error is one based upon the exclusion from the jury of a certified copy, from the record of deeds of a deed conveying the premises in dispute, made by one James Child to Horace Merry. Before offering the copy from the record, the plaintiffs made proof that the original was not in their possession, and that search had been made for the same, where it was most likely to be found but that such search was ineffectual. As the objection upon which the paper was excluded relates entirely to the proof of its execution before the recording officer, it is only necessary to set out in this opinion the in testimonium clause, the attestation, and the affidavit, which were as follows:

'In witness thereof, the said party of the first part hath hereunto set his hand and seal, the day and date above written. J. Child. [Seal.]

'Signed, sealed, and delivered in presence of W. S. Olmstead, John I. Livingston.

'County of Marion, State of Florida. Before me, John L. Branch, clerk of the circuit court of Marion county, personally appeared Woodbridge S. Olmstead, who on his oath says that he saw James Child sign the above deed, and that he acknowledged that he did so for the purpose therein mentioned; and he, the said W. S. Olmstead, and John Livingston, signed the same as witnesses. W. S. Olmstead. Sworn to before me, this the 4th day of January, 1848. John L. Branch, Clerk.'

The same John L. Branch who took the proof was the clerk who recorded the deed and the copy offered in evidence was duly certified from the official record of deeds. The objection urged is that the affidavit was insufficient to authorize the recording of the deed, because it proved only a signing, and not the sealing and delivery or the full execution thereof. By reference to the foregoing portion of the deed, it appears by the attestation clause thereof that the same was 'signed, sealed, and delivered' in the presence of two witnesses, although the witness making affidavit for the purpose of having the deed recorded only swore that he saw the grantor 'sign' the same, and 'acknowledged that he did so for the purpose therein mentioned,' and that affiant and the other subscribing witness 'signed the same as witnesses.' Construing this affidavit with the attestation clause of the deed itself, it sufficiently shows that the deed was not only signed, but sealed and delivered. The affidavit of proof sufficiently refers to the deed, and both should be construed together in determining the sufficiency of the proof of execution. It is the policy of the law not to nullify such records wherever substance is found, and obvious clerical errors and technical omissions should be disregarded. It is sufficient if there be a substantial compliance with the statute. The subject has been fully discussed in this state, and further discussion is unnecessary. Einstein's Sons v. Shouse, 24 Fla. 490, 5 So. 380; Summer v. Mitchell, 29 Fla. 179, 10 So. 562; Cleland v. Long, 34 Fla. 353, 16 So. 272. The court erred in refusing to permit the record to be read in evidence to the jury.

Several assignments of error are predicated upon rulings of the court below excluding from the jury two other deeds by which the appellants (plaintiffs below) sought to establish a chain of title from Horace Merry, the grantee in the deed above mentioned. They are not argued by counsel for appellants. Adhering to the rule established and frequently asserted here, we consider these assignments as abandoned. We have not considered them except so far as to determine whether, upon the whole case, the exclusion of the deed of Child to Merry was harmful or harmless error, and we indicate no further opinion as to whether the assignments of error under consideration are or are not well taken, except that the error in excluding the deed of Child to Merry, upon a view of the whole case, was not harmless error.

The next error complained of is the ruling of the circuit court striking out the testimony of M. L. Payne, E. W. Agnew, and Roderick Long, witnesses for the plaintiffs. Among other things, the witness Payne testified: 'I considered that I was in possession of the property, as agent for Carn, before Haisley (one of the defendants) inclosed it in 1883. E. W Agnew & Co. were in possession of it until Mr. Haisley took it from them, in October, 1883. I placed E. W. Agnew in possession, representing D. H. Carn and the plaintiff Elizabeth Jackson. They were both interested in the property. * * * I was acting jointly for both of them. * * * Agnew & Co. commenced using the property as a lumber yard early in 1883, and were so using it, and had hauled a good, big pile of lumber there to commence building the livery stable, when, in October, 1883, Mr. Haisley took possession and built the fence. * * * I put Agnew in possession as agent of Carn, for benefit of Carn and plaintiff Jackson.' E. W. Agnew testified as follows: 'I have known the lots in suit since 1865. E. W. Agnew & Co. bought them, as we thought, and in October, 1883, commenced to build a stable on the lots. We used them whenever we wanted to. Before we went into possession, no one was ever in possession. I went over these lots five or six times a day, going to and from my ginhouse. Some two or three months before I commenced to build on them, I made arrangements to use them as a lumber yard. I inquired as to who owned them, and ascertained that Mr. Payne was agent for them. On authority from Mr. Payne, I took possession of the property. I never paid for it. I had a deed. I told Mr. Payne I would not pay until the title was settled. I never heard any question...