Simmons v. Spratt

• Decision Date: 24 March 1887
• Citation: 1 So. 860
• Parties: SIMMONS and others SPRATT.
• Court: Florida Supreme Court

1 So. 860

___Fla.___

SIMMONS and others v. SPRATT.

Florida Supreme Court

March 24, 1887

Appeal from circuit court, Duval county.

Syllabus by the Court

SYLLABUS

Tenants in common may make parol partition between themselves of the real estate held by them, so far as to put each one in the exclusive possession of the part allotted to him, if followed by actual possession, but such partition does not convey the legal title to the whole of the part allotted

A deed of land to the 'estate of D. W. Hart' is a nullity.

A bill of exceptions taken in a former trial of a cause, which sets forth the evidence of a witness since deceased, cannot be introduced on a second trial to prove what was the testimony of such deceased witness on the former trial.

Quaere whether after a long lapse of time, the acquiescence of the parties in the verdict, and the inability to obtain living witnesses to prove the testimony of the deceased witness such testimony might not be admissible.

The judge's notes of the testimony of a witness since deceased are not admissible per se, but must be proven to be correct.

COUNSEL

Geo Wheaton Deans, for appellants.

A. W Cockrell & Son, for appellee.

OPINION

McWHORTER C.J.

Suit in ejectment was brought by the appellee L. W. Spratt against the appellant Eliza Simmons for the recovery of lot 2, in block 134, in the city of Jacksonville. The plaintiff claimed title through Isaiah D. Hart, who derived his title from a grant to one Hogan from the Spanish crown. Plaintiff introduced a paper called a deed of distribution from Hart's executors to the legatees and devisees under his will. This deed was dated June 1, 1866, and by it the executors 'set apart, distribute, and convey unto the estate of D. W. Hart' the lot in controversy. The plaintiff also introduced in evidence the will of D. W. Hart, devising the lot in question to Lula Dearing, his niece; also a deed by a master in chancery to said Spratt of the lot in question purporting to have been made in pursuance of a decree in chancery foreclosing a mortgage made by Mrs. Dearing to one Brantley. On a trial of the cause a verdict was rendered for the plaintiff. An appeal was taken to this court, (see 20 Fla. 495,) and the judgment was reversed. The court held that the deed of distribution to the 'estate of D. W. Hart' was a nullity, and that the title to the land was in the estate of I. D. Hart. Upon another trial of the cause in the court below, the plaintiff introduced in evidence, along with the other evidence alluded to, the will of I. D. Hart, all the proceedings of the circuit court in the foreclosure suit against Mrs. Dearing, and the proceedings in the probate court authorizing the distribution of the property of I. D. Hart, deceased. Plaintiff obtained another verdict, and defendant now brings the case to this court by appeal.

If we properly understand Judge WESTCOTT in the former case, an action of ejectment could not be supported on the deed of distribution to the 'estate of D. W. Hart.' The introduction, on the second trial, of the will of I. D. Hart and of the foreclosure proceedings, and the proceedings in the probate court, can have no effect in modifying the decision as to the deed. The will of I. D. Hart, and the order of sale for payment of debts, and for a more equitable distribution, might have been considered as authorizing a...