Richbourg v. Rose

• Decision Date: 16 April 1907
• Citation: 53 Fla. 173,44 So. 69
• Parties: RICHBOURG et al. v. ROSE.
• Court: Florida Supreme Court

44 So. 69

53 Fla. 173

RICHBOURG et al. v. ROSE.

Florida Supreme Court, Division B.

April 16, 1907

Error to Circuit Court, Walton County; Francis B. Carter, Judge.

Action by E. P. Rose against J. A. Richbourg and W. A. Richbourg. Judgment for plaintiff. Defendants bring error. Reversed.

COUNSEL

Daniel Campbell & Son, for plaintiffs in error.

S. K Gillis and Avery & Avery, for defendant in error.

OPINION

PARKHILL J.

On the 25th day of April, 1906, the defendant in error, hereinafter called the plaintiff, instituted an action of replevin against the plaintiffs in error, who for convenience will be known elsewhere in this opinion as the defendants, in the circuit court for Walton county, to recover the crude turpentine in the turpentine boxes in the pine trees on the W. 1/2 of the S.E. 1/4 and the W. 1/2 of the N.E. 1/4 of section 26, township 3 N., range 23 W., in Walton county Fla., alleged in the affidavit to be of the value of $125. The property was redelivered to defendants upon their forthcoming bond. On the 7th day of May, 1906, the plaintiff filed his declaration, alleging therein that defendants wrongfully detained from the plaintiff the said personal property, the crude turpentine as aforesaid, from the plaintiff's possession, and that said property was of the value of $125, and claimed $250 damages. On the 4th day of June, 1906, the defendants filed a plea of not guilty, and on the 3d day of October, 1906, an additional plea 'that the said property is not the property of plaintiff.' The plaintiff joined issue on both pleas. On the 3d day of October, 1906, a trial was had, resulting in a verdict in favor of the plaintiff for 12 barrels of crude gum, of the value of $5.50 per barrel--$66. A motion for new trial was overruled, to which ruling the defendants excepted. Final judgment was rendered on the verdict, from which judgment defendants seek relief here by writ of error. Three other causes between the same parties, of a similar nature, pending in the court below, by agreement depend upon and will abide the decision in the instant case.

I. Passing by the first and second assignments of error, to consider them in their logical order, we will direct our attention first to the third assignment, as follows: 'The court erred in admitting in evidence the timber lease or deed from J. B. Allen and wife to Rose and Johnson over defendants' objection.' This assignment is based upon the introduction in evidence of the following paper writing by the plaintiff:

'State of Florida, Walton County.

'Know all men by these presents, that we, J. B. Allen and wife, Alice Allen, for and in consideration of the sum of one hundred and fifty ($150.00) to us in hand paid by Johnson & Rose, the receipt of which is hereby acknowledged, have granted, bargained and sold, and by these presents do bargain, sell and convey, unto the said Johnson & Rose all the pine timber now standing upon the lands, to wit, W. 1/2 of S.E. 1/4 and W. 1/2 of N.E. 1/4 of section 26 in township 3 north of range 23 west, containing 160 acres, situated and lying in Walton county, Florida.

'We further grant, bargain, sell and lease unto the said Johnson & Rose the above-described lands to be used for turpentine purposes and privileges, giving and granting unto the said Johnson & Rose the right at any time from the date hereof until the 1st day of May, 1910, to enter upon and work said timber for turpentine purposes, as well as to cut and remove said timber from said land with the right of ingress and egress to and from same. We warrant the title of said lands and its freedom from all incumbrances.

'In witness whereof we hereunto set our hands and seals this the 4th day of May, 1903.

'J. B. his X mark Allen. [Seal.]

'Alice Allen. [Seal.]

'Wit.

'J. R. Smith.

'Joe his X mark Allen.

'State of Florida, Walton County.

'Before the subscriber personally appeared J. B. Allen and Alice Allen, known to me to be the individuals described, and acknowledged that they executed the foregoing instrument for the uses and purposes therein set forth, and the said Alice Allen, on a private examination by me, held separate and apart from her husband, acknowledged and declared that she executed the same freely and voluntarily, and without fear, apprehension, compulsion, or constraint of or from her husband, and for the purposes of renouncing, relinquishing and conveying all her rights of whatsoever kind in and to the said property. Given under my hand and seal this 4th day of May, A. D. 1903.

'[L. S.] E. W. Carter, J. P.

'Filed for record, this 3d day of June, A. D. 1903, at 10 o'clock a. m. and recorded in Vol. 14, at page 451, of Deeds, and record verified.

'[L. S.] James A. McLean,

'Clerk Circuit Court,

'Walton County, Florida.'

To the reading of the same in evidence, the defendants objected on several grounds. The objections argued here are as follows: 'It does not purport to be signed, sealed, and delivered in the presence of two witnesses. There is no attestation clause to it.' The judge overruled the objections thereto and admitted same in evidence, to which ruling the defendants excepted.

It is urged in argument that 'this instrument purported to convey the turpentine privileges upon a certain piece or parcel of land; it was offered in evidence as a conveyance of the interest in land; it was necessary, in order to operate as a conveyance of the interest in land, that it be signed, sealed, and delivered in the presence of two witnesses'; and that the letters 'Wit,' above the names of J. R. Smith and Joe Allen, are not sufficient to show a signing by grantors in the presence of two witnesses.

We agree with counsel for plaintiff in error that this instrument purports to grant an estate in land for a term of more than two years, and, under the provisions of section 2448 of the General Statutes of 1906, and section 1950 of the Revised Statutes of 1892, 'no estate or interest of freehold, or for a term of years of more than two years, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by deed in writing, signed, sealed and delivered in the presence of two subscribing witnesses.'

There is conflict of authority, both in England and in this country, upon the question whether a sale of growing trees is the sale of an interest in or concerning land, so as to be within the operation of the statute of frauds. The great weight of authority in this country is that a sale of growing or standing timber is a contract concerning an interest in lands, and within the statute of frauds. Hirth v. Graham, 50 Ohio St. 57, 33 N.E. 90, 19 L. R. A. 721, 40 Am. St. Rep. 641, and cases cited; Owens v. Lewis, 46 Ind. 488, s. c. 15 Am. Rep. 296, and cases cited and reviewed; Garner v. Mahoney, 115 Iowa, 356, 88 N.W. 828; Wiggins v. Jackson (Ky.) 73 S.W. 779.

In Hirth v. Graham, supra, the court, after reviewing the cases pro and con on this question, said: 'The question is now for the first time before this court for determination. and we are at liberty to adopt that rule on the subject most conformable to sound reason. In all its other relations to the affairs of men, growing timber is regarded as an integral part of the land upon which it stands. It is not the subject of levy and sale upon execution as chattel property. It descends with the land to the heir and passes to the vendor with the soil. * * * Sales of growing timber are as likely to become the subjects of fraud and perjury as are the other integral parts of the land, and the question whether such sale is a sale of an interest in or concerning lands should depend, not upon the intention of the parties, but upon the legal character of the subject of the contract, which, in the case of growing timber, is that of realty. This rule has the additional merit of being clear, simple, and of easy application--qualities entitled to substantial weight in choosing between conflicting principles.'

This is not an open question in this state. In Jenkins v. Lykes, 19 Fla. 148, text 158, 45 Am. Rep. 19, the court held that a 'simple contract for a sale of the trees is void as a contract for an interest in land; standing trees being of the realty.' And in King v. State, 43 Fla. 211, 31 So. 254, the court, considering an instrument of like force and effect as the one in the instant case, held that it purported to grant an estate in land for a term of more than two years, and was executed with only one subscribing witness, and was, under the above statute, invalid and ineffectual as a lease for such term.

We must determine, then, the sufficiency of the attestation clause of the lease from Allen to Johnson and Rose.

In Hogans v. Carruth, 19 Fla. 84, text 90, this court said: 'As to the matter of the attestation of the deed, our statute does not require any particular form of words for the attestation clause of a deed, and the attestation clause of a deed in the words, 'bargained, sold, transferred and acknowledged in presents [presence] of us,' where the testificandum clause is, 'In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written,' other facts showing delivery being established, is sufficient. The term 'acknowledged' indicates that the parties affirmed the signing and sealing to be their act before these witnesses.'

In 9 Am. & Eng. Ency. Law (2d Ed.) 150, it is said:

'It is advisable for witnesses to sign under the phrase commonly used in the state where the land lies. Yet any phrase which clearly denotes that the persons signing were witnesses will be valid.'

Do the letters 'Wit,' written...