Marsh v. Bennett

• Decision Date: 21 March 1905
• Citation: 38 So. 237,49 Fla. 186
• Parties: MARSH v. BENNETT et al. [*]
• Court: Florida Supreme Court

38 So. 237

49 Fla. 186

MARSH v. BENNETT et al. ^[*]

Florida Supreme Court, Division A.

March 21, 1905

Error to Circuit Court, Volusia County; Minor S. Jones, Judge.

Action by Reuben Marsh against Porter S. Bennett and others. Judgment for defendants, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. A deed may be valid to convey title to land, even though its execution is not acknowledged or it has not been recorded. Where the original of such a deed is offered in evidence it is error to exclude it on the ground that it is 'insufficient for want of acknowledgment.'

2. When, in an action of ejectment, a deed of conveyance is offered in evidence which describes the land mentioned in the declaration, except that it is not clear whether the number of feet stated by figures is the same as, or less than, the number of feet stated in the declaration, and it is apparent that the description in the deed covers at least a part of the land described in the declaration, the deed is not subject to the objection that it 'describes an entirely different piece of land from that alleged in the declaration.'

3. As a general rule, objections to the introduction in evidence of a deed will not be considered by the appellate court unless such objections were made first in the trial court.

COUNSEL Craig Phillips, for plaintiff in error.

Isaac A. Stewart (Egford Bly, on the brief), for defendants in error.

OPINION

WHITFIELD C.J.

Reuben Marsh brought an action of ejectment against the defendants in error in the circuit court for Volusia county to recover the 'N. E. 95 feet of lot two, block ten, Daytona.' At the trial, on a plea of not guilty, the plaintiff offered in evidence a tax deed, which was excluded by the court, and the plaintiff took a nonsuit, with bill of exceptions, under section 1269, Rev. St. 1892. The cause was brought to this court by a writ of error, which was dismissed, as no final judgment appeared in the record. 35 So. 336. A final judgment for the defendants was entered November 11, 1904, and the plaintiff took a writ of error therefrom to the present term of this court. The bill of exceptions states that at the trial by the court, a jury having been waived by the parties through their counsel, 'the plaintiff, to maintain the issues on his part, produced and offered in evidence a certain deed made by John W. Dickens, clerk of the circuit court, to Reuben Marsh.' A copy of the deed, signed 'John W. Dickens [Seal], Clerk of Circuit Court,' and attested by two witnesses, is then given.

Counsel for the defendants objected to the introduction of the deed in evidence on the grounds (1) that the deed is not acknowledged, and no proof of execution was offered, and (2) that the deed describes an entirely different piece of land from that alleged in the declaration and in the certificate of sale attached to the deed. The court held the deed to be 'insufficient for want of acknowledgment,' and excluded it, to which ruling the plaintiff excepted. Error is assigned thereon.

A deed may be valid to convey title to land, even though its execution is not acknowledged. Ellis v. Clark, 39 Fla. 714, 23 So. 410. The deed offered was the original of a tax deed issued to the plaintiff. So far as appears by the record, it was only necessary to prove its execution to entitle it to be admitted in evidence. The transcript presents no question as to the record of the deed. The bill of exceptions does not state whether or...