Little v. Kendrick

• Decision Date: 09 April 1943
• Citation: Little v. Kendrick, 152 Fla. 720, 12 So.2d 899 (Fla. 1943)
• Parties: LITTLE et al. v. KENDRICK.
• Court: Florida Supreme Court

12 So.2d 899

152 Fla. 720

LITTLE et al. v. KENDRICK.

Florida Supreme Court

April 9, 1943

Appeal from Circuit Court, Marion County; F. R. Hocker judge.

W. E Smith, of Ocala, for appellants.

Lanas Troxler, of Ocala, for appellee.

ADAMS, Justice.

We have for review a judgment for defendant in ejectment.

Defendant claimed title to 147 acres of land by adverse possession without color of title. He went into possession as a tenant of the rightful owner and so remained until the owner's death in 1926. Thereafter defendant maintained an inclosure about a portion (the amount and description is not identified) of the land. The heirs of the landlord are plaintiffs here.

Defendant farmed portions of the land and cut wood and posts from the unfenced woodland. He maintained a barn with an inclosure about it; he suffered, without protest plaintiffs' removal of the building occupied by the owner after his death. He never offered to pay rent to plaintiffs although none was demanded. Neither did he make known to plaintiffs that he was no longer a tenant or that he was claiming to own the property until about a year before this suit when he began the erection of a dwelling house on the property whereupon the question of title arose.

Two questions are submitted. First, whether it was necessary for defendant to show compliance with Section 95.18, Florida Statutes of 1941, F.S.A. § 95.18, by returning the property for taxation. The lower court held the statute inapplicable to this case because whatever rights defendant had to the property were vested before the act became effective. In this ruling there was no error.

The second question relates to the sufficiency of the evidence regarding adverse possession to sustain a verdict. The law is that a tenant may become an adverse holder against his landlord without surrendering his possession yet in such case it is incumbent on the claimant to show his disavowal of the landlord's title by clear, positive and unequivocal evidence. It is not enough for him to simply remain in possession and exercise all the rights of an apparent owner, for the law presumes that once a man goes into possession as a tenant the relationship continues until the contrary is made to appear. 1 Am.Jur. page 807 et seq. One claiming title by adverse possession without color of title can recover only that part actually occupied. If the portion actually occupied is not difinitely described, no judgment can be entered on the claim. Okeechobee Co. v. Norton et al., 145 Fla. 417, 199 So. 319.

Testing the defendant's claim by this law it is apparent he must fail. His evidence is insufficient to sustain his claim. Furthermore, he admits that a portion of the property was not inclosed, neither was the uninclosed portion usually cultivated or improved. Therefore he failed to meet the requirements of Section 95.17, Florida Statutes, 1941, F.S.A. § 95.17. The part actually inclosed is not sufficiently described to sustain a judgment even if the evidence were sufficient to prove an adverse holding.

The judgment is reversed.

BUFORD, C. J., and TERRELL, J., concur.

CHAPMAN, J., concurs specially.

CHAPMAN, Justice (concurring specially).

On June 17, 1889 the Federal Government patented to Charles H. Little 147 acres of land located in Marion County, Florida. The patentee built a home, cleared a considerable portion of the tract, where he resided for years and raised several children. The children, except one, left the community in which the homestead was situated prior to the patentee's death in 1926, which occurred at the home of his son about one mile from the homestead.

Charles H. Little conveyed one acre of land, adjacent to but of a different tract, to Ed Kendrick, who built a home thereon and moved his family but cultivated annually as a tenant of Charles H Little a portion of the tract here involved. He continued to cultivate the land, or...