Okeechobee Co. v. Norton

• Decision Date: 06 March 1942
• Citation: 149 Fla. 651,6 So.2d 632
• Parties: OKEECHOBEE CO. et al. for Use and Benefit of HAMRICK et ux. v. NORTON et al.
• Court: Florida Supreme Court

6 So.2d 632

149 Fla. 651

OKEECHOBEE CO. et al. for Use and Benefit of HAMRICK et ux.

v.

NORTON et al.

Florida Supreme Court

March 6, 1942

Certiorari from Circuit Court, Okeechobee County; A. O. Kanner, Judge.

See, also, 145 Fla 417, 199 So. 319.

E. B. Donnell, of West Palm Beach, and R. E. Hamrick, of Okeechobee, for petitioners.

G. C Durrance, of Okeechobee, for respondents.

CHAPMAN, Justice.

This case is before the Court on petition for a common law writ of certiorari to review an order denying a motion for a judgment non obstante veredicto entered by the Circuit Court of Okeechobee County Florida. The case comes here for the second time. See Okeechobee Company v. Norton, 145 Fla. 417, 419, 199 So. 319.

On April 3, 1939 plaintiffs below, petitioners here, instituted an ejectment suit for the purpose of recovering title to certain real estate described in the amended declaration, consisting of 88.09 acres situated in Okeechobee County, Florida. Plaintiffs, in conformity with common law rule No. 85, filed with the amended declaration a bill of particulars setting forth a chronological chain of title upon which it intended to rely at the trial of the case. It is viz:

'The chain through which the plaintiff claims title to the land described in the above declaration is as follows:

'1. Patent from United States of America to the State of Florida under Act of Congress of September 28, 1850.

'2. The Trustees of Internal Improvement Fund of the State of Florida to Wisner Land Company, a Florida corporation, by State deed No. 16,115 dated December 19, 1907 and recorded September 24, 1917 in Deed Book 1 page 10 in the Circuit Clerk's office of Okeechobee County, Florida.

'3. Wisner Land Company, a Florida corporation, to Consolidated Land Company, a Florida corporation, under warranty deed dated April 23, 1912 and recorded in Deed Book 1 page 20 on September 24, 1917 in the Circuit Clerk's office of Okeechobee County, Florida.

'4. Consolidated Land Company, a Florida corporation, to Okeechobee Company, a Florida corporation, under warranty deed dated September 15, 1923, recorded October 10, 1923 in Deed Book 4, page 414 in the Circuit Clerk's office of Okeechobee County, Florida.

'5. The Trustees of the Internal Improvement Fund of the State of Florida to the Okeechobee Company, a Florida corporation, by State deed No. 17,338, dated October 15th, 1925 and recorded November 7th, 1925 in Deed Book 14, page 211 in the Circuit Clerk's office of Okeechobee County, Florida.

'6. Under Sheriff's deeds from Claude Simmons, as Sheriff of Okeechobee County, Florida, to C. M. Highsmith, dated March 1st, 1937 and recorded March 1st, 1937 in Deed Book 32 page 296, and under Sheriff's deed from Eugenia Simmons as Sheriff of Okeechobee County, Florida, to C. M. Highsmith, dated the 6th day of June, 1938 and recorded in deed Book 34 at page 543 on the 20th day of June, 1938, both in the Circuit Clerk's office of Okeechobee County, Florida, which said Sheriff's deeds are based on an execution issued out of the Circuit Court of the 21st Judicial Circuit of Florida in and for Okeechobee County, Florida, under date of March 13th, 1932 and which said execution is based on final judgment in favor of C. M. Highsmith against Okeechobee Company, a Florida corporation, dated March 1st, 1930 and recorded March 1st, 1930 in Judgment Book 2 page 432 in the Circuit Clerk's office of Okeechobee County, Florida.'

The defendants filed amended pleas to the amended declaration and attached a bill of particulars in conformity with Common Law Rule No. 85, and the same viz:

'Come now the defendants, by their attorney and, by leave of the Court, file their amended plea in the above styled cause, and thereupon say:

'1. They are not guilty.

'2. The defendants deny that they are now or were at the institution of this suit, in possession of the lands sued for.

'3. And for a third plea to the declaration filed herein, the defendant, Nathan Norton, claims title by adverse possession, under color of title, to the following described lands, namely:

'That part of Lots 3, 4, 6, 7 and 8 of Block 6 of Consolidated Land Company's Farm Tracts, in Section 10, Township 37 South, Range 36 East, according to Plat Book 1, page 5, Okeechobee County, Florida, lying between the Hancock Meander Line and the Florida East Coast Railway Right-of-Way, as shown by the plat of the Consolidated Land Company's Farm Tracts hereinbefore set out, and described in the declaration filed herein.

'G. C. Durrance

'Attorney for Defendants.

'(Sworn to by Mr. Durrance on September 17, 1941.)

'Bill of Particulars.

'The title upon which the defendants rely consists of the following deeds:

'Deed from B. A. Adkins, unmarried, executed on the second day of August, A. D. 1932, to E. L. Tillman, which said deed is recorded in Deed Book 17, page 592, Public Records of Okeechobee County, Florida.

'Deed from E. L. Tillman and wife, executed August 16, 1934, to W. M. Norton and N. N. Norton, which said deed is recorded in Deed Book 36, page 27, Public Records of Okeechobee County, Florida.'

The issues of fact were submitted to a jury and at the conclusion of the taking of the testimony and prior to argument of counsel and the instruction by the Court to the jury on the law of the case, counsel for plaintiffs below moved the Court for an order directing the jury to find a verdict for the plaintiffs on the ground that the plaintiffs had established a clear and complete record of title from the United States Government down to the plaintiffs; and on the further ground that the defendants had failed to support their plea of title by adverse possession under color of title; and on the further ground that these questions had been adjudicated by this Court in the case of Okeechobee Company v. Norton, supra; and on the additional ground that the defendants' testimony failed to show an open, adverse, notorious and continuous possession under color of title for the seven year period.

The motion for a directed verdict in behalf of the plaintiffs was overruled by the trial court and the issues of fact were submitted to the jury under appropriate instructions. The jury returned a verdict for the defendants below. Pertinent and material charges as given are viz: 'Gentlemen, the Court instructs you that in every action for the recovery of real property or for the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time prescribed by law; and the occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title, unless it appears that such premises have been held and possessed adversely to such legal title for seven years before the commencement of such action. In this case, the action was commenced on April 3, 1939.

'Gentlemen, the defense of adverse possession without color of title is not involved in this suit. As heretofore stated, the defendant Nathan Norton, claims adverse possession under color of title; the Court, therefore, charges you that whenever it shall appear that the occupant, or those under whom he claims, entered into possession of the premises under the claim of title, exclusive of any other right, finding such claim upon a written instrument as being a conveyance of the premises in question, or upon the decree or judgment of a...