Johnson v. Rhodes

• Decision Date: 20 October 1911
• Citation: 62 Fla. 220,56 So. 439
• Parties: JOHNSON et al. v. RHODES.
• Court: Florida Supreme Court

56 So. 439

62 Fla. 220

JOHNSON et al. v. RHODES.

Florida Supreme Court, Division B.

October 20, 1911

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

Action by Seth Johnson, as administrator of P. P. Johnson, and individually, and others, against J. T. Rhodes. Judgment for defendant, and plaintiffs bring error. Affirmed.

Syllabus by the Court

SYLLABUS

Plaintiff in error, in whom there is a documentary title to land cannot recover it in an action of ejectment from a defendant who has been in possession thereof under a tax deed for more than four years before the suit was brought.

A plaintiff possessing documentary title to land cannot recover the land in an action of ejectment against a defendant when he and those under whom he claims title have been in open possession of the land for more than seven years before the suit was brought, claiming first under a sheriff's deed as color of title, and then by successive deeds with continuous adverse possession in the several grantors.

A party is not required by law to record an ordinary deed to land and when he entered into possession under his deed, and has continued in possession up to the time of trial of a suit in ejectment against him for the recovery of said land, it is not reversible error for the trial judge to refuse to permit the plaintiff to ask him why he kept his deed off the record until after the suit was brought.

Where a defendant is claiming title to land by adverse possession reputation of ownership may be given in evidence.

A motion to strike the whole testimony of a witness, much of which was proper, is properly refused.

Where a witness is recalled by the party who introduced him, and questions were addressed to said witness by said party calculated to produce the impression on the mind of the trial judge that they were calculated to elicit testimony in conflict with his testimony in chief, and no explanation is given which would have avoided such a conclusion, and the testimony sought was not in rebuttal of any evidence of the opposite party, it cannot be held that the trial judge erred in refusing to allow such questions to be propounded.

The order of the introduction of testimony rests in the discretion of the trial judge, and the exercise of such discretion will not be disturbed unless it is apparent there has been an abuse of it. This doctrine applies to the opening of the plaintiff's case for the introduction of new evidence not in rebuttal, and to the recall of a witness for redirect examination.

Where a sheriff's deed is only introduced as color of title, upon which adverse possession is predicated, it is immaterial whether such a deed is void or not.

It is irregular for the trial judge to give a peremptory charge for the defendant before argument to the jury, but where the record fails to show that there was any demand for argument and that this was made a specific ground of objection to the action of the judge, the irregularity is not sufficient to cause a reversal.

COUNSEL

Paul Carter and Wm. B. Farley, for plaintiffs in error.

C. L. Wilson and Price & Lewis, for defendant in error.

OPINION

HOCKER J.

On the 11th of July, 1906, an action of ejectment was instituted, by the plaintiffs in error against the defendant in error and other parties as to whom the case was afterwards dismissed, to recover the possession of the S.E. 1/4 of the S.E. 1/4 of section 13, township 5, range 13, N. & W., and the N.E. 1/4 of section 24, township 5, range 13, N. & W., containing about 200 acres of land and mesne profits. The defendant filed a plea of not guilty. In June, 1910, the case was tried, and in accordance with affirmative charge by the judge the jury returned a verdict for the defendant. A motion for a new trial was made and overruled, and judgment was entered for the defendant, which is here for review on writ of error.

The plaintiffs proved title in their ancestor, P. P. Johnson, by a series of patents and deeds. There is no contention on this point. The defendant's case rests upon a title by adverse possession for seven years before the institution of the suit under color of title to the N.E. 1/4 of section 24, township 5, range 13, N. & W., and to possession for over four years under a tax deed before the institution of the suit of the S.E. 1/4 of the S.E. 1/4 of section 13, township 5, range 13, N. & W.

The evidence in this case is very much like that in all similar cases where the witnesses who testify to dates and facts do not always speak with the definiteness and certainty of trained minds. This condition of things generally and naturally gives occasion to many objections and exceptions on the part of the attorneys trying the case, and, when all this is brought in the record to the appellate court whose members did not hear the testimony or observe the conduct of the witnesses, the task of reviewing satisfactorily the ruling of the trial judge upon the probative force of the evidence is not an easy one.

We think it quite clear that the defendant proved with reasonable certainty that he and those under whom he claims were in possession of the S.E. 1/4 of the S.E. 1/4 of section 13, township 5, range 13, N. & W., for more than four years before the institution of this suit under a tax deed to T. C. Adams, dated the 13th of July, 1901. Adams testified that he went into the possession of this land two or three months after he received the tax deed, and repaired the fencing and the house. There were no crops grown on the open land that year, but he rented the land the next year, 1902, to Mr. Horne, who raised a crop on it. The next year, 1903, he rented it to Mr. Eldredge, and a crop was raised on the land. Mr. Rhodes had used it for farming purposes ever since he bought it of the witness. The deed from T. C. Adams and wife is dated 31st of October, 1903.

Mr. Rhodes, the defendant, testified that he raised a crop on this land in 1904, and has cultivated it right on until the time he testified. This suit was brought more than four years after possession was taken by Adams. When the tax deed was offered in evidence, the record shows that the plaintiff 'objected and offered to introduce the tax roll. The court thereupon ruled that the plaintiff could do that and move to strike.' The plaintiff afterwards introduced the assessment roll for Jackson county for the year 1898, which shows that this land was assessed to 'P. P. Johnson's heirs.' The plaintiff then moved to strike the tax deed, because the land was not assessed to 'the owner or occupant,' because the tax deed does not show on its face the number of the certificate under which it was issued, nor recite that it was filed in the clerk's office, and because the statute sought to be availed of was a special statute, and must be pleaded.

The plaintiffs in error admit that the case of Ropes v. Minshew, 47 Fla. 212, 36 So. 579, settles the question against them that a motion to strike the tax deed was not the proper method of raising the questions presented. But it will be observed that the trial judge when objection was made to the introduction of the tax deed observed that this practice might be followed.

The twenty-third assignment of error presents the question that the court erred in not excluding the tax deed from the evidence. The only argument presented by the brief in support of this assignment is that the assessment to P. P. Johnson's heirs was void under the decision of L'Engle v. Wilson, 21 Fla. 461. It is only necessary to observe that the tax deed follows the form found on page 224, Revised Statutes of 1892, and that this suit was not brought until after the expiration of four years from the time the purchaser of the tax title went into possession, and that this suit as to the land embraced in the tax title was barred under the decision in Florida Finance Co. v. Sheffield, 56 Fla. 285, 48 So. 42, 23 L. R. A. (N. S.) 1102. As no other question is presented in the brief under this assignment, it is not sustained.

We will next take up the question of the evidence as to the adverse possession by the defendant of the other land embraced in this suit for seven years under color or title before this suit was brought.

The first instrument upon which the defendant relies is a deed of the sheriff of Jackson county, Jas. A. Finlayson, to A. D. McKinnon, dated March 14, 1898. The second instrument to support color of title is a deed from A. D. McKinnon and wife to S.W. Wilson and Eva P. Everett, dated October 19, 1899. The third instrument to support color of title in defendant is a deed from Wilson and wife and Eva P. Everett to Margaret M. Nichols, dated 13th of December, 1902, and the fourth instrument relied on to support color of title in defendant is the deed of Margaret Nichols and her husband, John Nichols, to the defendant, dated 10th of October, 1903. The deed from Sheriff Finlayson to McKinnon was objected to when offered in evidence, because it was not recorded, and because the judgment and execution on which it was based were not produced in evidence. When offered by the defendant, it was stated that it was only offered as color of title, and no authority is shown by the plaintiffs in error why the deed alone was not sufficient for such a purpose, in view of the decision in Kendrick v. Latham, 25 Fla. 819, 6 So. 871. This disposes of the fifth assignment of error.

There is no assignment of error based on the admission in evidence of either of the other deeds introduced by the defendant in support of his color of title. We will now address ourselves to the evidence in support of possession by the defendant of the N.E. 1/4 of section 24, township 5 N range 13 W., under his color of title. D. L. McKinnon testified for the...