Peninsular Naval Stores Co. v. Mathers
| Decision Date | 04 December 1928 |
| Citation | 119 So. 333,96 Fla. 620 |
| Parties | PENINSULAR NAVAL STORES CO. v. MATHERS et al. |
| Court | Florida Supreme Court |
Error to Circuit Court, Wakulla County; Amos Lewis, Judge.
Suit by Thomas Malichi Mathers and others, for the use of Guyte P McCord, against the Peninsular Naval Stores Company. Judgment for plaintiffs, and defendant brings error.
Affirmed.
Syllabus by the Court
Use plaintiff, as real plaintiff, must account for loss of deed as predicate for certified copy. Where a suit in ejectment is brought by one for the use of another, the real plaintiff is the one for whose use the suit is brought; and when, in such a suit, it becomes necessary to introduce, in behalf of plaintiff, a certified copy of a deed, the party for whose use the suit is brought is the proper party to account for the loss or absence of the original deed, in laying a predicate for offering such certified copy of the deed in evidence.
Only objections made to evidence will be considered. The appellate court will consider only such grounds of objection to the admissibility of evidence as were made in the trial court and the plaintiff in error is confined to the grounds of objection made and urged by him in the court below.
To be considered, objections to evidence must have been made below assigned as error, and argued or briefed. Only such grounds of objection to the admissibility of evidence as were made before the trial court, and assigned as error, and argued or briefed by plaintiff in error on appeal, will be considered by the appellate court.
Abstract of title may be introduced to supplement certified copy of record of deed mutilated by fire (Rev. Gen. St. § 2732). When, in the trial of a case, it becomes necessary for either party to introduce in evidence a certified copy of the record of a deed, and it is shown that the record book in which such deed was recorded has become so impaired and mutilated from the effects of fire as to cause portions of the page of the original record of the deed to crumble or break off, so that words contained in such deed and the certificate of the acknowledgment thereof are no longer shown by such original record, it is not error, under the provisions of section 2732, Revised General Statutes of Florida, to admit in evidence an abstract of the title to the property described in such deed, made from the deed record of the county by one familiar therewith, for the purpose of showing that at the time the abstract of title was made certain words were found on the mutilated or impaired page of the original record which did not appear on said page at the time the certified copy of the record of the deed was made, nor at the time of the trial of the case.
To supplement certified copy of mutilated record, to show grantor's surname in certificate of acknowledgment, resort may be had to copy of entire deed, to impaired record, and to testimony of witnesses. When the certified copy of the record of a deed, mutilated and impaired from the effects of fire, as set forth in the preceding headnote, fails by reason of the impaired condition of the original record, to disclose the surname of the grantor given in the copy of the certificate of acknowledgment, and objection is, for this reason, made to the admissibility of such certified copy of the record of the deed in evidence, resort may be had to the certified copy of the record of the deed as a whole, and to the original record as impaired, as also to the testimony of witnesses familiar with the original record of the deed prior to its impairment, for the purpose of determining whether or not, prior to the impairment of such record, the surname of the grantor appeared in the record of the certificate of acknowledgment to the deed, and also whether or not the name of the grantor so appearing in the acknolwedgment as originally recorded, and the name of the grantor found in the body of the deed, are the same.
Certified copy of record impaired by fire held admissible, though full name of grantor was not shown. Where the original record of a deed has been impaired from the effects of fire, as set forth in the fourth headnote, and it appears from certified copy of such impaired record of the deed, together with an examination of the impaired original record, and the testimony of a witness familiar with the original record before it became impaired, that the certificate of acknowledgment to the deed, as originally recorded, contained the name of the grantor in full, and that such name was the same as that of the grantor named in the deed, such certified copy of the record is admissible in evidence, even though it does not on its face disclose, in its impaired certificate of acknowledgment, the full name of the grantor acknowledging same.
On question of admissibility of certified copy, registry of ancient deed will be presumed authorized by law. Upon the question whether or not the registry of a deed of ancient date was authorized by any law, so that the registry may be evidence of the original deed, the law will always incline to give effect to such proceedings, if possible, on the ground that a presumption in their favor, that at the time they were regarded as valid, arises from the fact of their having been taken, and the court will presume that the proceedings were justified by some law then existing.
Presumption is in favor of validity of ancient proceedings. The court will always incline to give effect to ancient proceedings, if possible, upon the ground that the very fact of their having been taken, raises some presumption in their favor, that at the time they were regarded as valid; and unless the court can perceive some sure ground upon which their insufficiency rests, it will be presumed that some law existed by which the proceedings were justified, and which has escaped investigation by the court through the obscurity which the lapse of time always indicates.
Authorized recordation of ancient deed and justification therefor held presumed making certified copy admissible. In the trial of an ejectment suit, the plaintiff, in undertaking to prove title to the property involved, offered a certified copy of the record of a deed, purporting to have been executed in January, 1871, proven for record by the affidavit of a subscribing witness in August, 1871, and recorded in the proper county in the same month. The affidavit of the subscribing witness, as shown by certified copy of the deed, is as follows: 'Georgia, Thomas County. 'In person came Clinton Sneld, before me the undersigned a Justice of the Peace in said County, who being sworn says that he saw W. H. Mathers sign seal and deliver the above deed to Thirza B. Mathers for purposes therein mentioned, that he signed said deed as a witness himself in present of W. H. Mathers and saw J. J. Evritt do so likewise. Clinton Sneld. 'Sworn to and subscribed before me this Aug.-14th 1871 R. B. Madree J. P.' Held, that the document so offered in evidence is a certified copy of an ancient document and an ancient record of an ancient document, and the court will presume that its recordation was authorized, and the proceedings taken in proving same for record were justified under the law.
Certified copy of deed on record 55 years held admissible, despite defects in acknowledgment. It is proper to admit in evidence a certified copy of a deed which has been on record more than 55 years, even though there may be some defect in the certificate of acknowledgment or affidavit proving same for record.
Request for instruction is necessary to review failure to instruct. The failure of the court below to charge on a point of law cannot be assigned as error before the appellate court, unless it is made to appear that such instruction was requested and refused.
Charge as to adverse possession held not misleading. In an action of ejectment, in which the defendant claims title to the property by adverse possession under color of title, a charge of the court which instructed the jury that, if they found from the evidence that the defendant, or that the defendant and those under whom it claimed, had been in the actual, open, notorious possession of the lands involved, under a claim of right and adversely to all others for a period of seven years then they should find for the defendant is not susceptible to the objection that it is misleading.
On defendant's introduction of tax deed plaintiff might show irregularities in tax proceedings. Where in the trial of an ejectment suit, the defendant introduced in evidence a tax deed to one of its predecessors in title from the state of Florida, to the lands involved, it is not error for the court to permit plaintiff to introduce in evidence a certified copy of the assessment roll, showing the manner of the assessment of the property for the year that tax sale was made; nor is it error to permit plaintiff to introduce in evidence a certified copy of the advertisement of the lands for tax sale for the purpose of showing fatal irregularities in the proceeding regarding the assessment of the taxes which were delinquent, and also the proceedings attending the sale of the lands for taxes.
Jos. A. Edmondson and William Blount Myers, both of Tallahassee, for plaintiff in error.
E. T. Davis, of Tallahassee, for defendants in error.
An ejectment suit, instituted in the court below by the defendants in error, as plaintiffs, against the plaintiff in error and Angus Morrison, as defendants, resulted in a verdict and judgment for plaintiffs. From this judgment the defendant Peninsular Naval Stores Company, a corporation, has sued out a writ of error to this court.
The first error assigned attacks the decision and order of the court below in...
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