Milton v. Danford
| Decision Date | 11 September 1930 |
| Citation | 130 So. 435,100 Fla. 761 |
| Parties | MILTON et ux. v. DANFORD. |
| Court | Florida Supreme Court |
Error to Circuit Court, Hillsborough County; N. B. K. Pettingill Referee.
Suit by Fred C. Danford against Jessie Milton and wife. Verdict for defendants, and, from an order granting a new trial defendants bring error.
Reversed and remanded.
A deed by one to land which is in the adverse possession of another is void as against such adverse claimant, and, where conveyance is made of the lands which at the time are in adverse possession of one not a party to the deed, ejectment will not lie in the name of the grantee to such deed, but only in the name of the grantor.
Although the grantee in a valid tax deed acquires a new, complete, and perfect title, extinguishing all former titles and possessory rights even as against a disseisor in possession at and prior to the time the tax deed was issued, nevertheless, when the tax deed grantee undertakes to convey to another, the latter conveyance is one between individuals, upon which the statute of uses operates. If when the latter conveyance is executed the grantor, grantee in the tax deed, is out of possession and a third party is in possession, the grantor is unable to make lawful livery of seisin. Such deed is therefore void as to the disseisor in possession when the deed was executed and the grantee therein cannot maintain ejectment in his own name against the disseisor to recover possession.
H. P. Bailey, of Tampa, for plaintiffs in error.
E. L. Bryan, of Tampa, for defendant in error.
In this case writ of error was taken from an order granting a new trial.
Danford brought suit against Jessie Milton and his wife, Jesse Milton. The plaintiff based his suit and right to recovery upon a deed without warranty from J. M. Miles and wife, Mae Louise Miles, dated the 7th day of September, 1928, and a tax deed from the clerk of the circuit court of Hillsborough county to Mrs. J. M. Miles, dated the 10th day of August, 1928. The tax deed recited that the lands were sold for taxes by the tax collector of the county of Hillsborough on the 5th day of July, 1926, for the unpaid taxes for the year A. D. 1925, as the property of 'Unknown.'
The record shows that, at the time of the conveyance from Miles and wife to Danford, the plaintiff, the defendants were then in the open adverse possession of the lands involved in the suit. A judgment was rendered in favor of the defendants.
The law is well settled that a deed by one to land which is in the adverse possession of another is void as against such adverse claimant, and also that, where conveyance is made of lands which at the time are in adverse possession of one not a party to the deed, ejectment will not lie in the name of the grantee to such deed, but only in the name of the grantor. See Coogler v. Rogers, 25 Fla. 853, 7 So. 391; Nelson v. Brush, 22 Fla. 374; Doe v. Roe, 13 Fla. 602; Watkins et al. v. Emmerson et al., 88 Fla. 86, 102 So. 10; Farrington v. Greer, 94 Fla. 457, 113 So. 722.
It therefore appears from the record that no judgment in this case could have been lawfully entered in favor of the plaintiff, and it was therefore error to grant a new trial. The order granting a new trial should be reversed and the cause remanded, with directions that the verdict in favor of the defendant as originally entered shall stand as the basis for the judgment in this cause, unless a motion in arrest of judgment, or for judgment non obstante veredicto, shall be made and prevail. It is so ordered. Florida East Coast Ry. Co. v. Davis, 96 Fla. 171, 117 So. 842; section 4615, Comp. Gen. Laws 1927; Wilhelm v. South Indian River Co. (Fla.) 124 So. 729.
Reversed and remanded.
CONCURRING
In Stuart v. Stephanus, 94 Fla. 1087, 114 So. 767, it was held that a valid tax deed clothed the grantee with a new, complete, and perfect title by a paramount grant from the sovereign, extinguishing all former title, of which it is entirely independent. When the tax deed and its antecedent procedure are valid, the land accompanied by a new, exclusive, complete, and paramount title goes to the purchaser. In this case, that rule applies to the title acquired by Mrs. J. M. Miles, the grantee in the tax deed. In an action in ejectment brought by her, the fact that the defendants, the Miltons, were in adverse possession and asserting an independent title at the time the tax deed was issued would be no bar to an action in ejectment by the grantee in the tax deed. As against that grantee, the title and possessory rights of the Miltons would be extinguished and obliterated, assuming the tax deed to be valid.
Mrs. Miles, however, who is the tax grantee, never obtained possession of the land, but, while she was out of possession, and the Miltons were in possession, Mrs. Miles undertook to convey the land to the plaintiff, Danford. The latter was a conveyance between individuals, upon which the statute of uses operates. Although the disseisors, the Miltons, would have had no standing as against Mrs. Miles, the tax deed grantee, on account of the fact that Mrs. Miles secured from the state a new, paramount, and complete title through the tax deed, nevertheless, Mrs. Miles, not being in possession at the time of her conveyance to Danford, was not in a position to convey a complete title to her grantee, Danford, because she was then disseised, and therefore could not lawfully make livery of seisin. The statute of uses would intervene to prevent Mrs. Miles, a grantor out of possession, from conveying a complete title to Danford upon which Danford could maintain a real action for possession in his own name against the disseisors, the Miltons. See section 5668, Comp. Gen. Laws 1927.
Though Mrs. Miles acquired by her tax deed, if valid, a perfect title as against the disseisors, the Miltons, including the right to possession, not having gone into possession, her deed to Danford was inoperative to convey to Danford the right of seisin, or the right of entry as against one who was in adverse possession at the time the deed from Mrs. Miles to Danford was executed. As against the disseisors in possession, the deed from Mrs. Miles to Danford was void. See Bunch v. High Springs Bank, 81 Fla. 450, 89 So. 121.
The rule in Farrington v. Greer, 94 Fla. 457, 113 So. 722, therefore applies in an action by Danford, because he derives title through a conveyance from one who could not lawfully make livery of seisin upon him at the time of the conveyance to him. As against the disseisors, the Miltons, the deed to Danford was void, not because the Miltons were in possession at and prior to the issuance of the tax deed, but because Mrs. Miles was out of possession, and the Miltons in possession, at the time Mrs. Miles, by private conveyance, to which the statute of uses applies, undertook to convey to Danford. Section 1020, Comp. Gen. Laws 1927, and its predecessor statutes, are merely statutes of repose, but this rule is consistent with the provisions thereof.
The point under discussion, however, is largely technical, for Danford may sue in the name of the tax deed grantee, Mrs. Miles, for his own use and benefit. See Farrington v. Greer, supra.
I therefore concur in the opinion prepared by Mr. Justice BUFORD, and in the judgment of reversal.
The facts as disclosed by the record are, in substance, as follows: The lot of land was sold in 1926 for the taxes of 1925, a tax deed was made to Mrs. J. M. Miles therefor on August 10, 1928, who produced to the clerk of the court at the time of obtaining the tax deed the tax certificate on which the deed was based. On September 7, 1928, J. M. Miles and wife, Mae Louise Miles, conveyed the land to Fred C. Danford, who on the 22d day of January, 1929, within six months after the date of the tax deed, began an action of ejectment against Mrs. Jesse Milton and her husband, ----- Milton, to recover the land. Mr. and Mrs. Milton were in possession of the land. Mrs. J. M. Miles nor her husband had ever obtained possession, and Danford had not obtained possession under the deed from Miles and wife.
On the 9th day of May, 1928, three months prior to the date of the tax deed to Mrs. Miles, R. E. L. Pryor and wife executed a warranty deed to J. E. Milton. One of the defendants, Jessie Milton, testified that he had 'occupied that property' since March, 1925, and claimed the title to it under the deed from Pryor to J. E. Milton executed on May 9, 1928.
The case by consent of parties was tried by a referee. There was some discussion about waiving objections to the introduction of deeds because the objection was not made at the proper time. The point is of no importance, because the order in which evidence may be received when a case is tried before a jury is a matter within the court's discretion, but, when a case is tried by a referee, who is court and jury, it becomes of little or no importance when an objection to evidence is made, so long as it is made before the decision.
In December, 1929, the referee decided the case in favor of the defendant. His findings and judgment rested upon the theory as set forth in his opinion, that the deed from Miles and wife to Danford was void as to the Miltons because they were in possession of the land when Danford obtained his deed that the phrase 'the purchaser at such tax sale,' as used in section 794, Rev. Gen. St. 1920, is restricted in meaning 'to the party named as grantee in the tax deed;...
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