Rushing v. Chappell, N--265

• Decision Date: 06 May 1971
• Docket Number: No. N--265,N--265
• Citation: Rushing v. Chappell, 247 So.2d 749 (Fla. App. 1971)
• Parties: Laura M. RUSHING, Appellant, v. John M. CHAPPELL, and Kate B. Chappell, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 749

247 So.2d 749

Laura M. RUSHING, Appellant, v. John M. CHAPPELL, and Kate B. Chappell, his wife, Appellees.

No. N--265.

District Court of Appeal of Florida, First District.

May 6, 1971.

Rehearing Denied June 4, 1971.

Frank T. Cannon and George A. Pierce, Sr., Jacksonville, for appellant.

Jones, Foerster & Hodge, Jacksonville, for appellees.

CARROLL, DONALD K., Judge.

The plaintiff in an action to cancel a special werranty deed has appealed from an order entered by the Circuit Court for Duval County denying her motion for a new trial and to set aside the adverse final judgment theretofore entered by the said court.

The principal question presented for our determination in this appeal is whether the chancellor abused his judicial discretion in denying the said motion, which was grounded upon newly discovered evidence.

The plaintiff alleges in her complaint that on about January 27, 1902, Richard P. Moore purchased from Joseph A. Sparkman and wife two tracts of real property in Duval County, as evidence by a certain recorded deed, and that the plaintiff, one of Moore's heirs at law, is now the fee simple owner of the said tracts; that Moore on the said date went into actual possession of the tracts, that he and his heirs have been in actual possession and have had them continuously under fence and cultivation and have paid all taxes thereon ever since. The plaintiff further alleges that, when Moore purchased the tracts, he was told by the grantor, Sparkman, that this real property extended along a county road, State Road 13, to Deep Bottom Branch; that in 1902 or soon thereafter Moore erected a fence and enclosed a parcel of land containing 1.1 acres, more or less, as his own, which he put in cultivation as a part of his said purchase evidenced by the said deed; that ever since that time Moore and his heirs have been in continuous possession of this 1.1 acre parcel, have had it continuously under fence and cultivation, and have paid the taxes thereon. In her complaint the plaintiff finally alleges that the defendants claim title and right of possession to the said 1.1 acre parcel by virtue of their recorded special warranty deed, whereas the plaintiff claims title and right of possession to the said 1.1 acre parcel under the deed dated January 27, 1902. A copy of the special warranty deed, dated July 8, 1968, and covering the said 1.1 acre parcel, is attached as a part of the complaint. In the conclusion of the complaint the plaintiff demands judgment against the defendants cancelling the said special warranty deed and declaring it to be null and void as a cloud on the plaintiff's title.

To the above complaint the defendants filed their answer, in which they assert that the plaintiff's occupancy of the 1.1 acre parcel constitutes a mere unlawful trespass and that they are now seized and possessed of the fee simple title to the said parcel under the special warranty deed, clear of all right, title, and interest of the plaintiff. This deed states that the grantors thereof are the sole heirs at law of Levi Sparkman and Mary Frances Sparkman, his wife, both deceased.

Following the trial of the issues in this case without a jury, the chancellor, sitting as the trier of the facts, entered his final judgment, making the following findings of fact: that the subject land, the 1.1 acre parcel, is not included in the deed dated January 27, 1902, and the plaintiff has no claim to adverse possession under color of title; that she has not possessed and occupied and said parcel as required by Sections 95.18 and 95.19, Florida Statutes, F.S.A., and that the title conveyed to the defendants by the special warranty deed in 1968 is superior to any possessory rights claimed by the plaintiff. The chancellor then quoted as his authority the following rule recognized by the Florida Supreme Court in Culbertson v. Montanbault, 133 So.2d 772 (Fla.App.1961):

'The law is clear that, he who comes into equity to get rid of a legal title as a cloud upon his own must show clearly the validity of his own title and the invalidity of his opponent's. Equity will not act in the event of a doubtful title. To succeed a party must do so on the strength of his own title. * * *'

In the Culbertson case, Supra, our Supreme Court also held:

'* * * To base a title on adverse possession, he must show that such adverse possession has been continued, consecutive, and unbroken for the statutory period. Gould v. Carr, 1894, 33 Fla. 523 15 So. 259, 24 L.R.A. 130, and the facts establishing the adverse possession must be to a higher degree of certainty, clarity and positiveness, Squires v. Rispler, Fla. 1953, 69 So.2d 177, and continuity is the...