Seymour v. Creswell

• Court: Florida Supreme Court
• Writing for the Court: MR. JUSTICE WESTCOTT.
• Citation: Seymour v. Creswell, 18 Fla. 29 (Fla. 1881)
• Decision Date: 01 January 1881
• Parties: WM. L. SEYMOUR AND WM. R. SIMPSON, APPELLANTS, v. CRESWELL ET ALS., COMMISSIONERS OF THE FREEDMEN'S SAVING AND TRUST COMPANY, APPELLEES

18 Fla. 29

WM. L. SEYMOUR AND WM. R. SIMPSON, APPELLANTS, v. CRESWELL ET ALS., COMMISSIONERS OF THE FREEDMEN'S SAVING AND TRUST COMPANY, APPELLEES

Supreme Court of Florida

January 1, 1881

Rehearing Denied 18 Fla. 29 at 41.

Appeal from the Circuit Court for Duval county.

The facts of the case are stated in the opinion.

Judgment reversed.

J. C Marcey and C. L. Robinson for Appellants.

Cockrell & Walker and Judson W. Whitney for Appellees.

OPINION

MR. JUSTICE WESTCOTT.

A preliminary question is raised by the respondents as to the bill of exceptions in this case. The bill shows upon its face that the decree of foreclosure of the mortgage given by O. B. Hart to Cone, and the record in the suit of Howell and wife vs. Simpson, were used in evidence, and neither of these papers is in the record. Respondents contend that for this reason, and because the bill of exceptions does not purport by its recitals to contain the whole of the evidence, this court must presume that there was proper evidence to support the judgment, and it must be affirmed. As a matter of fact, the bill by its recital does purport to contain all of the evidence of each of the parties, and we must hold these recitals to be correct, except where, upon the face of bill, the contrary appears. The commencement of the bill follows the form prescribed by the rules of practice controlling the subject, and the recitals as to the testimony of each of the parties is in the form which implies that all of the testimony is in the bill. Immediately preceding the charge of the Judge, the bill recites that "the parties had submitted and concluded all their testimony and the several matters aforesaid." The bill also recites that "the plaintiffs submitted all their evidence as above herein set forth, and did then and there rest." This is entirely sufficient, according to the form prescribed by this court, and the forms followed under the English practice. Rules of Prac. Circuit Courts, pp. 37, 38; Tidd's Forms, 329; 2 Steph. Nisi Prius by Sharswood, 1797.

Again, it is not necessary that a bill of exceptions should in all cases contain all of the evidence. In a large majority of cases it should not. It should contain only so much of the evidence as is necessary to present the legal questions raised. When more than this is inserted in the bill it is an irregularity, to be condemned as a departure from established practice, inconvenient and embarrassing to the court. 1 Black 209; 6 Fla. 522. The omission of the decree of foreclosure of the mortgage of O. B. Hart to Cone will not authorize us to presume independent facts relating to title and possessions having no connection with such mortgage. In the treatment of this case we examine it upon the hypothesis that such mortgage was, in all respects, regular and proper, and that it authorized the decree of sale, and the sale had thereunder. So in reference to the record in the suit of Harrell and wife vs. Simpson to the extent that any matter in the record could be affected by it, we must and will make every presumption in favor of the respondents. This matter is not material in the decision of this cause. It concerns the questions raised as to parties plaintiff, and our decision is upon other grounds independent of any question which this record could affect. The deeds constituting the chain of title of each party are before us, and all the evidence bearing upon the question of possessions is in the bill. It is from these facts that our conclusion is reached. We must say, however, that we can see no excuse in this record for the negligence shown by the omission from the bill of the papers referred to. Thus disposing of the questions made in reference to the bill of exceptions, we reach the case as it is presented by the record.

The appellants in possession are sued in ejectment by the respondents to recover lots six and seven in block one hundred and thirty-six, in the City of Jacksonville, with mesne profits, for their use and occupation. After trial, verdict and judgment for respondents, this appeal is prosecuted, and the case is here upon exceptions taken during the trial and to an order of the court overruling a motion for a new trial made by the appellants, against whom the verdict was found by the jury; the ground of the motion being that the verdict was contrary to the evidence.

The case is interesting, presenting, as it does, some very nice questions concerning the doctrine of title through adverse possession, and rights resulting from possessions without title.

A general principle controlling in actions of ejectment is that the plaintiff must recover upon the strength of his own title, and not on the defects in that of his adversary. We first enquire whether, in view of this general rule, the respondents established by their evidence such a title to the premises. They insist that they did.

In treating this question we do not propose to make elaborate citations from the testimony, but to state our conclusions from repeated careful examinations of it.

The plaintiffs in the Circuit Court (respondents here) propose to trace their title to the heirs of Purnal Taylor, the claim being that under a deed from such heirs to Isaiah D. Hart, dated May 6, A. D. 1834, and a deed of Maria Hogans, dated the third day of December, A. D. 1851, the title to these lots passed to I. D. Hart, and that through regular conveyances from Isaiah D. Hart and other parties claiming through him, his and their rights were vested in them.

The land conveyed to I. D. Hart by the heirs of Purnal Taylor is indicated by sections, townships and named boundaries in chains, being described generally as "part of a tract of land granted by the Spanish Government to the widow and heirs of Purnal Taylor, deceased, on the 13th of September, A. D. 1816, and surveyed by George I. F. Clark, Surveyor General, on the 21st day of February, A. D. 1817." From the evidence in the record, whether we disregard or consider the opinion of the Commissioner of the General Land Office of the United States as to the boundaries of the Hogan grant, which is objected to as not being admissible as evidence, the jury could have concluded, as we think they did, that the land described in the deed of the heirs of Purnal Taylor to I. D. Hart was embraced in this grant by the Spanish Government. This grant, which is called in the testimony the Hogan's grant, was confirmed by the Board of Commissioners for ascertaining claims and titles to land in East Florida on the 26th of April, A. D. 1824, to Z. Hogans and his heirs, (4 American State Papers 171,) and was subsequently confirmed to Hogans by act of Congress of February 8th, 1827. 4 Stat. at Large, 202.

One of the witnesses for plaintiffs (R. N. Ellis), who had surveyed the grant, testified that it included the lots which are the subject of this controversy. Charles F. Smith, a witness for defendants, who was likewise a surveyor, testified that he had run the lines of the Hogan's grant, and that they did not embrace these lots. The jury believed the survey by Ellis to be correct and so found. It was a question of credibility and we must adopt their conclusion. This, however, only establishes the right and title of the grantors of Isaiah D. Hart to these lots at the date of their conveyance to him in 1834. It does not establish any title in I. D. Hart, because the grant to him was of a "part" of the Hogan's grant. His title and his right, so far as they result from his deed, must be fixed by the boundaries of that deed. All the witnesses who testify as to the boundaries named in this deed swear that they do not embrace lots six and seven in block one hundred and thirty-six, the land which is the subject of this suit. Plaintiffs' attorney, in explanation of this testimony, urges that "none of the witnesses pretend to say what changes had in forty-six years taken place in the banks of the river, or whether the present bank of the river is where the bank was, while we are all acquainted with the natural process of accretion and rescision constantly going on in rivers." The bank of this river is the initial point of the surveys made of the boundaries named in the deed of the heirs of Purnal Taylor to Isaiah D. Hart. If there has been sufficient accretion, it may be true that the north boundary as named in the deed would fall south of these lots at the time of the surveys by these witnesses, while at the date of the deed it may have embraced them, but there is in the record no evidence of either accretion or abrasion, and we are unable to see how, in the absence of any testimony upon the subject, we or the jury can say there was an addition to the bank rather than an abrasion of it. The burden was upon the plaintiffs to show that these lots were embraced within the boundaries named in this deed, and if the bank has encroached upon the water of the river to such an extent as to produce the result stated, the plaintiffs should have established it by testimony. This they have failed to do, and the necessary result is that there is not a particle of foundation in this record for the view that the land described in this deed embraced these lots. The result is that I. D. Hart never had the legal title to these lots by virtue of this deed, and not having the legal title there could be no legal seizin or possession incident to title in him, and he having no legal seizin or possession by title, the plaintiffs could not derive them from him. The deed from Maria Hogans does not purport to convey a title beyond her interest. The record discloses that she did not own the entire property but only a limited estate in it, and her deed can be no foundation for a judgment awarding the entire property to the respondents. From what has...