Kendrick v. Latham

• Decision Date: 14 December 1889
• Citation: 6 So. 871,25 Fla. 819
• Parties: KENDRICK v. LATHAM et ux.
• Court: Florida Supreme Court

6 So. 871

25 Fla. 819

KENDRICK v. LATHAM et ux.

Florida Supreme Court

December 14, 1889

Appeal from circuit court, Hernando county.

Appellant sued appellees, James F. and Ida Latham, in ejectment, to recover a piece of land, containing 30 acres, lying in Hernando county, in the N.E. 1/4 of the S.W. 1/4 of section 15, township 24 S., range 21 E., described as follows 'Beginning at the northwest corner of the north-east quarter of the south-west quarter of the section, and running south, three hundred and thirty yards; thence east, four hundred and forty yards; thence north, three hundred and thirty yards; and thence west, four hundred and forty yards to the initial point.' Defendant pleaded not guilty as to the following part of the land, containing 10 acres, viz 'A lot beginning at the north-east corner of Annie Ravesies' ten-acre tract, at a stake, and running west four hundred and forty yards; thence north, one hundred and ten yards to a stake; thence east, four hundred and forty yards; and thence south, one hundred and ten yards, to a point of beginning,'--and, as to the residue of the land, pleaded that they were not in possession of it. Appellant took issue on the pleas.

There was trial before a referee, who gave judgment in favor of the defendants. Plaintiff, having appealed, has assigned as error--First, the admission as evidence, for any purpose whatever, of a certified copy of a deed from A. C. Sumner and wife to one C. S. Blackshear; second, the admission of a deed from J. B. Mickler, sheriff of Hernando county, to T. S. Coogler; third, the admission of a deed from Annie M. Tomlinson to James F. Latham; and,fourth, in giving judgment in favor of the defendants upon the evidence shown by the record.

The plaintiff, Kendrick, claims title to the land under a lost conveyance of the east half of the south-west quarter of the above section of land, alleged to have been made to him by the trustees of the internal improvement fund of the state, on the 23d day of November, 1859.

The defendants offered in evidence an original record re-establishing a judgment rendred October 8, 1870, and execution issued thereon on the 19th day of the same month, in favor of Anderson Mayo, as administrator of T. H. Edrington, against C. S. Blackshear and others, in Hernando county circuit court, for $120.62. The original judgment and execution had been destroyed, in the burning of Hernando county records, in September, 1877. The order re-establishing the same was made March 27, 1879, by the judge of the fifth circuit; the judge of the circuit of which Hernando county is a part being disqualified.

Objections having been made by the plaintiff to the admission of these proceedings as evidence, they were rejected by the referee.

Defendants then offered in evidence a certified copy of a deed purporting to have been made by A. C. Sumner, January 15, 1876, conveying the said east half of said quarter section of land to C. S. Blacks hear in fee, and its admission in evidence was objected to on the ground that the record of the original deed was not legal; that it was not duly authenticated for record, and not competent evidence, without proof of execution of the original; which objection being sustained, defendants 'disclaimed any intention to show title by it, but only an incident to be supported by further testimony,' and, the plaintiff objecting on the ground that the copy did not show that the original was properly authenticated for record, the referee 'held or admitted' it 'only to the extent that it may be hereafter supported by evidence,' and the defendant excepted.

Defendants then offered in evidence a deed from J. B. Mickler, sheriff of Hernando county, dated October 6, 1879, conveying to Coogler the east half of the quarter section mentioned above, pursuant to a sale of the same made by him under the execution referred to above, and issued on said judgment; said sale having been made at public auction on the day of the date of said deed, it being the first Monday in October, 'after duly advertising the same according to law,' and said land being sold as the property of said C. S. Blackshear,--Coogler being the highest bidder, and the deed stating his bid, and his payment of the same.

To the admission of this deed in evidence plaintiff objected--First, that the judgment, and execution upon which it was based, was not sufficiently proven as a predicate; and, secondly, that the deed did not recite how long notice was published, or when, or in what county or state the sale took place, or that the sale was made at the court-house door, or within the legal hours of sale.

The action of the referee is as follows. 'Filed and offered in evidence January 25, 1888. Objected to by plaintiff. First objection sustained, second overruled. Counsel on both sides except.'

The record also shows a deed from Coogler and wife, dated December 22, 1881, conveying the half quarter section of land to Annie M. Tomlinson, and that the same was admitted in evidence 'in so far as admissible under the circumstances of the case;' and a deed from Annie M. Tomlison to appellee James F. Latham, dated May 1, 1883, conveying to Latham 'thirty acres of land, being the north part of the north-east (1/4) fourth of the south-west quarter of' said section, describing it, 'the division line to run east and west.'

The plaintiff objected to the introduction of the latter deed on the ground that certain erasures and interlineations on its face had not been satisfactorily explained. The consideration seems to have been expressed prior to the interlineation and erasures, as follows: 'For and in consideration of the sum of two hundred and forty dollars to be paid by the said Latham, the sum of one at and before the ensealing and delivery hereof, the receipt whereof ----- do hereby acknowledge, and thereof and forever discharge the said -----, her executors and administrators.' This has been changed to read, after the word 'one,' as follows, viz., 'hundred and sixty dollars in lumber, at $1.00 per 100 feet, and the sum of eight dollars in money, due twelve months from this date.' The words which we have italicized above have a line drawn through them, but they are still legible. The substituted words are interlineations.

The other facts are stated in the opinion of the court.

Syllabus by the Court

SYLLABUS

1. A certified copy of the record of a deed is not admissible in evidence as proof of the execution or contents of the original, if the record has not been made upon the evidence of execution required by the statute.

2. Where a referee admits a copy of a paper in evidence to the extent that it may subsequently be supported by testimony and further testimony is introduced, showing that the original was executed by the granter named in the copy, and that the copy is a true copy of such original, the error, if any, of admitting the copy is without injury to the party complaining of it.

3. Possession of land in this state is presumed to be under, and in subordination to, the legal title, unless it appear that the land has been held and possessed adversely to such title for seven years before the commencement of an action to recover the same founded on the title.

4. Where a person enters upon land under a party not holding the true title, and afterwards takes a deed of conveyance from him, such entry will, from the date of the deed, be regarded as an entry under claim of title to the land described in the deed, and in hostility to the true title, and exclusive of any other rights.

5. A 'forty' of land is not 'a tract divided into lots,' within the meaning of the fifth section of the statute of limitations of 1872, (McClel. Dig. 732,) but may be regarded as 'a known lot,' under the fourth clause of the sixth section of that act; and the improvement and adverse possession of a part thereof, under claim of title to the entire forty, founded upon a written instrument, as being a conveyance of the forty, is, in law, both under and independent of any special provision of our statute, adverse possession, for the same length of time, as well of the part nor cleared nor inclosed, as of the part actually improved and occupied.

6. Where there is privity between successive occupants holding adversely to the true title, and continuously, their successive periods of possession may be united, to make up the time of adverse holding prescribed by the statute as a defense against such title; but there can be no tacking of possessions, unless there is such privity.

7. Privity may be established between successive occupants by execution sale, and a conveyance by the officer making it.

8. A sheriff's deed, conveying a prior adverse occupant's interest in the land to the succeeding occupant, is not sufficient evidence to establish privity between them, or connect their possessions, because it is not of itself evidence of the sheriff's authority to sell. Judgment and execution must also be shown.

9. A sheriff's deed is of itself, or unaccompanied by judgment or execution, a sufficient written instrument upon which to found a claim of title to the premises described therein, and start the running of the statutory period in favor of one entering under it. ^[1]

10. No written instrument is necessary to establish privity between successive occupants pending the running of the statutory period, in so far as a transfer of the land, of which there is a pedis possessio, or actual, as distinguished from constructive, possession; but, as to the part of which there is simply constructive possession, a written instrument is essential to privity, but it need not be a formal deed. An instrument otherwise purporting to be a deed of conveyance but which has no seal, is sufficient.

11...