Phillips v. Lowenstein

• Decision Date: 23 January 1926
• Citation: 91 Fla. 89,107 So. 350
• Parties: PHILLIPS v. LOWENSTEIN et al.
• Court: Florida Supreme Court

107 So. 350

91 Fla. 89

PHILLIPS v. LOWENSTEIN et al.

Florida Supreme Court, Division B.

January 23, 1926

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Ejectment by Viola Lowenstein, a widow, and others against Albert Phillips. Judgment for defendant, and a new trial granted and defendant brings error.

Reversed and remanded, with directions.

Where some settled principle of law is violated by the trial court in granting a new trial, or where, in law the evidence requires the finding to be as made, and a judgment on the finding would be in accord with law and the requirements of substantial justice in the cause, the appellate court will reverse an order of the lower court granting a new trial, when the matter is appropriately presented.

In an action of ejectment, the plaintiff must recover on the strength of his own title, and not on the weakness of the title of the defendant. The plaintiff cannot recover even as against one without title, unless he shows title or prior possession.

To recover possession of land in an action of ejectment against one in actual possession, the plaifntiff should show title in himself and a right to the possession, or that he had been been in actual bona fide possession of the land, and was ousted by the defendant.

Married women can legally contract and convey property only as provided by law, and void contracts and conveyances of married women cannot be given effect by the doctrine of estoppel, in the absence of a statute permitted it.

The acts and conduct of a married woman in matters where she is legally competent to act, or where she acts in the manner required by law, may operate as an estoppel in pais as to her.

Estoppel does not operate to give legal capacity or competency to a married woman or to dispense with the requirements of law relative to the conveyance or mortgage by a married woman of her interests in real estate.

A void deed cannot work an estoppel.

In an action of ejectment brought by one who had not been in possession of the locus in quo, a deed purporting to convey the separate property of a married woman that is executed by the married woman and another than her husband does not show title or right of possession in the grantee or his successors in interest the married woman not having been made a free dealer under the statute.

On Rehearing.

Syllabus by the Court

SYLLABUS

If evidence is conflicting, or not clearly preponderant in favor of finding made, order granting new trial showing no abuse or error will generally not be reversed. Where the evidence is conflicting, or is not convincing convincing or clearly preponderant in favor of the finding made, or where no abuse or error in applying principles of law appears in an order granting a new trial, the appellate court will generally not reverse the order of the trial court.

If settled principle of law is violated, or evidence requires finding, order granting new trial will be reversed.

Plaintiff must recover on strength of his own title, and not on weakness of defendant's title; plainitff cannot recover even against one without titie, unless he shows title or prior possession.

To recover land against one in actual possession, plaintiff must show title and right to possession, or actual bona fide possession and ouster by defendant.

Married woman can contract and convey property only as provided by law; void contracts and conveyances of married woman cannot be given effect by estoppel (Const. art. 11, § 1; Rev. Gen. St. 1920, §§ 3801, 3803).

Acts and conduct of married woman in matters in which she is legally competent to act, or where she acts as required by law, may operate as estoppel.

Estoppel held not to given legal capacity or competency to married woman; estoppel does not dispense with requirements of law relative to conveyance or mortgage of real estate.

Void deed cannot work estoppel.

Deed of married woman, executed by her and another, held not to show title or right of possession in grantee or successors in interest.

Plea of not guilty in ejectment puts in issue title to lands, and admits possession by defendant (Rev. Gen. St. 1920, § 3236).

Provisions of burned records statute that stated conveyances under powers shall be presumed regular and correct held not to modify requirement that husband must join in conveyance of land (Rev. Gen. St. 1920, §§ 2729 et seq., 3801).

Provisions of Rev. Gen. St. 1920, § 2729 et seq., that, where stated records of conveyances have been burned, it shall be presumed that such conveyances made under powers are regular and correct does not modify requirement of section 3801 that conveyance of married woman's separate real estate must be joined in by husband so as to make valid deed by married woman and person not her husband, in absence of showing that such person had power given by husband to join in such deed.

COUNSEL

Johnson & McIlvaine, of Jacksonville, for plaintiff in error.

Alexander & Martin and George C. Bedell, all of Jacksonville, for defendants in error.

OPINION

WHITFIELD P.J.

Viola Lowenstein, a widow, and others brought against Albert Phillips an action of ejectment in the circuit court for Duval county to recover 'lots 2, 4, and 6, in look 1 of Jane H. Trasher's subdivision of south half of southwest quarter of southwest quarter of section 16, township 2 south, range 26 east, as per Plat Book 2, page 20, of the public records of said county, and also the land described as beginning at a point in the south line of said southwest quarter of southwest quarter of sectifon 16 in township 2 south, range 26 east, 1,065 feet west from the southeast corner of said '40', and running thence westerly along said line 157 1/2 feet, thence northerly at right angles 415 feet, thence easterly at right angles 157 1/2 feet, thence southerly 415 feet to place of beginning, containing 1 1/2 acres of land more or less.' The defendant pleaded not guilty, which plea put in issue the title to the lands, and admitted possession by the defendant. Section 3236, Rev. Gen. Stats.; Petty v. Mays, 19 Fla. 652; Buesing v. Forbes, 18 So. 209, 33 Fla. 495; Walters v. Sheffield, 78 So. 539, 75 Fla. 505, text 513.

A jury was waived, and the cause was tried by the court. By stipulation 'it is admitted that the property involved herein was at all times between November 27, 1897, to and including November 7, 1898, the separate property of Jane H. Trasher A married woman, the wife of William R. Trasher, and that she was a feme covert and not a free dealer, and that Jennie H. Trasher, alleged attorney in fact for william R. Trasher, was his daughter.'

The duly recorded muniments of title to the property in controversy were destroyed in the great fire which occurred in the city of Jacksonville, Fla., May 3, 1901; and by virtue of the provisions of chapter 4951, Acts of 1901 (section 2729 et seq., Revised General Statutes), an abstract of the title made in the ordinary course of business prior to such destruction was used in the trial of the cause.

It appears by answers to interrogatories propounded under the statute (sections 2734, 2735, 3237, Revised General Statutes) that plaintiffs claim through----

'(c) Warranty deed from Jane H. Trasher and William Trasher, her husband, by Jennie H. Trasher, his attorney in fact, to Elizabeth Silcox, dated November 7, 1898, and recorded November 16, 1898, in book 114, page 718, conveying the land situate, lying and being in the county of Duval and state of Florida, described as lots 2, 4, and 1, block 1, of a subdivision of S. 1/2 of S.W. 1/4 of S.W. 1/4 of section 16, in township 2 south, range 26 east. Also 1 1/2 acres beginning 1,965 feet west from southeast corner of said S. 1/2 of S.W. 1/4 of said section 16, township 2 south, range 26 east; thence west 157 1/2 feet; thence north 415 feet; thence east 157 1/2 feet; thence south 415 feet to beginning--all in S. 1/2 of S.W. 1/4 of S.W. 1/4 of section 16, township 2 south, range 26 east.

'(d) Power of attorney from William R. Trasher to Jennie H. Trasher, his daughter, dated March 3, 1897, recorded March 19, 1897, in Book 107, page 70, giving power to make and execute receipts, releases, assignments, conveyances, mortgages or deeds of trust, contracts for sale of real estate, and all acts necessary for such sales as to property owned in Florida, by first party.'

And that the defendant claims through----

'(0) Power of attorney from William R. Trasher to Jennie H. Trasher, his daughter, dated March 3, 1897, recorded March 19, 18978 in Book 107, page 70, giving power to make and execute receipts, releases, assignments, conveyances, mortgages or deeds of trust, contracts for sale of real estate, and all acts necessary for such sales as to property owned in Florida by first party.'

'(&) Warranty deed from William R. Trasher by Jennie H. Trasher his attorney in fact, and Mrs. J. H. Trasher to Morris Cohen, dateed September 13, 1899, and recorded September 18, 1899, in Book 119, page 465, covering the south half of the southwest quarter of the southwest quarter of section 16, south, range 26 east, township 2, being lot 10, in block 1, bounded on the south by Benjamin Park.

'(q) Warranty deed from Morris Cohen and wife to A. Phillips, dated April 22, 1921, and

The court rendered judgment for the defendant, 461, covering the south half of the southwest quarter of the southwest quarter of section 16, township 2 south, range 26 east, containing 20 acres more or less.'

That court rendered judgment for the defendant, and subsequently granted a new trial. A writ of error was taken by the defendant pursuant to the statute. Section 2905, Rev. Gen Stats.; McLendon v. Lurton-Hardaker Co., 91 So. 113, 83 Fla. 263; Ruff v. Georgia,...