Simmons v. Spratt

• Decision Date: 24 July 1890
• Citation: 26 Fla. 449,8 So. 123
• Parties: SIMMONS et al. v. SPRATT.
• Court: Florida Supreme Court

8 So. 123

26 Fla. 449

SIMMONS et al. v. SPRATT.

Florida Supreme Court

July 24, 1890

Appeal from circuit court, Duval county; JAMES M. BAKER, Judge.

Syllabus by the Court

SYLLABUS

1. A will which provides that the residue of the testator's estate shall be equally divided between his children, but directs when the division is made one of the children, naming her, shall have her share set off to her in other kind of property than slaves, does not vest the legal title of the residue of his real estate in his executors, but vests it in the children, as tenants in common, until the partition shall be made.

2. Where a devisee, who is a tenant in common with other devisees, dies leaving a will by which he devises his estate to his niece, the legal title to his undivided interest in the land devised to him passes under his will to the niece.

3. Although an instrument executed by executors, and purporting to 'set apart, distribute, and convey unto the estate of D. W. H., deceased,' one of the devisees of the testator lands described therein, does not convey the legal title of the land to the niece or devisee of D. W. H., yet the purpose shown by this deed (considered in connection with the will of the original testator, and that of D. W. H., devising his interest in the land to his niece, and proceedings instituted in the probate court by the executors for the partition of the land, in which proceedings the administrator cum testamento annexo of D. W. H. acted for his estate, bidding in certain lands for it under a system of bidding or so-called sales adopted for ascertaining the value of the lands, all of which instruments and proceedings connect themselves) is to set apart the lands described in it as the separate share which she, as the person entitled to hold under D. W. H., should take in severalty.

4. Where a deed, ineffectual to convey a legal title, has been executed by executors, and when considered in connection with other instruments and proceedings it shows an intent to partition the lands of the testator, and to set apart certain lands as the share which the person entitled to the interest of a deceased son of the testator should take in severalty and after the lapse of about 11 years the person so entitled--the niece and devisee of the son--mortgages part of the land included in the deed, her husband joining in the mortgage, and subsequently the mortgage is foreclosed and the land sold, a legitimate deduction to be drawn from the execution of the mortgage is the acceptance and ratification by the niece of the partition intended by the proceedings and, in the absence of any showing to the contrary, it is to be assumed that she relied on the partition for her right to mortgage the land in severalty.

5. A stranger to the common title cannot question the rightfulness of the exclusive possession of one tenant in common as against his co-tenants, and, where there has been an actual partition, such stranger cannot make the irregularity or invalidity of the partition proceedings a defense to a recovery by the party whom the exclusive possession of the land in question has been given. If the legal title to the entire part assigned in severalty did not pass, his title to the extent of his undivided interest is sufficient to maintain or assert his exclusive possession to the whole land assigned him, or any part thereof.

6. Where there has been an actual partition of land among tenants in common, and one of them conveys, by metes and bounds, a part of that assigned to him in severalty, the grantee has, as to the part so conveyed, the same rights against a stranger to the common title as his grantor had. Though the deed should prove void as to other co-tenants, it is good as against the grantor, and a stranger to the common title.

7. A bill of exceptions containing evidence of a witness who testified on a former trial of the same cause, and has since died, is not admissible to prove of itself what his testimony on that trial was.

8. Where there is error which cannot be said to be without injury, as it cannot be where testimony contributing to the weight of evidence on a point as to which there is conflict of testimony has been erroneously admitted, the judgment must be reversed.

COUNSEL Geo. Wheaton Deans, for appellants.

A. W Cockrell & Son, for appellee.

OPINION

RANEY, C.J.

On the former appeal in this case, (20 Fla. 495,) it was held that if the intended grantee in a deed is not named he should be ascertained by description, so as to distinguish him from all other persons, and that a deed purporting to set apart distribute, and convey a described lot of land 'to the estate of Daniel W. Hart,' he being dead, does not pass the legal title to his niece, his devisee, entitled to his estate.

The remaining question, therefore, as to title shown is, says the opinion, (page 500,) whether plaintiff, Spratt, proved title in Daniel W. Hart, because, if so, the testimony of Caulk must be held to identify the land in question, as being devised by Daniel W. Hart to Lula Dearing, whose interest passed to Spratt under the foreclosure sale; and hence the question is whether D. W. Hart or his devisee took such an estate under what is here called the deed of distribution of the executors of Isaiah D. Hart as can sustain an action of ejectment. And again, after stating the recitals of the deed, it is said, (page 504:) 'The question is, does a deed of conveyance by the executors of I. D. Hart, (who, under his will and an order of the court, are authorized to distribute I. D. Hart's estate,) conveying and setting apart this lot to the estate of Daniel W. Hart, vest such title in the devisee of Daniel W. Hart, who alone, under the terms of his will, could acquire it, as would enable such devisee to maintain ejectment? It is insistisee that these terms passed no estate; that the legal title here is still in the executors of I. D. Hart, if it was there before this deed.'

In response to these questions it is observed (pages 504, 505) that the description of the grantee as 'the estate of Daniel W. Hart' in the deed is too vague and uncertain to constitute a competent grantee at law; that there is no grantee, by name or otherwise; and that the court was without the most remote reference to the will of D. W. Hart, or anything by which it could be contended that his niece, Mrs. Dearing, was the grantee in the deed from the executors of I. D. Hart; and that the will of I. D. Hart was not in evidence to identify his legatees or devisees; that the grant was to an 'estate,' without definition of this expression, and that the executors (meaning, of course, those of I. D. Hart) connect nothing with the description, by way of reference, to enable identifying evidence to come in; that it cannot be said that the word 'estate' refers to the devisee under D. W. Hart's will, and for the reason that there is nothing to connect the deed and the will, as there was in Webb v. Den, 17 How. 579, where the deed was to the 'legatees and devisees of the late Anthony Bledsoe;' and it was concluded that Spratt had acquired no legal title under his mortgage purchase 'for want of legal title in the mortgagor,' (Mrs. Dearing.)

This court had before it, when it made the above decision, the 'deed of distribution of the executors of I. D. Hart,' of June 16, 1866, and the will of Daniel W. Hart, executed August 15, 1865, and admitted to probate on the 15th day of the following December, by which he devised his property to his niece, then Miss Lula Spear, and requested his executors to act as trustees of the same, and keep it in their possession until she should become of age, and then to deliver it to her personally. On the subsequent trial in the circuit court the plaintiff, Spratt, introduced, in addition to these instruments, the will of Isaiah D. Hart, and the proceedings in the probate court upon which the deed of his executors purports to be founded.

The will of Isaiah D. Hart was executed March 20, 1861, and admitted to probate the 27th day of the following September, and, after making special bequests and devises, provides by its ninth item as follows: 'All the remainder of my estate to be equally divided betwen my children, Ossian, Laura, Daniel, Julia, and Mary, except such as I have already given and bequeathed in this my last will and testament, or any that I may hereafter, by codicil or codicils made by me.' By a codicil made on the 10th of April, 1861, he directs that his daughter Laura have her share of the estate, when it is divided, set off to her in other kind of property than slaves. The tenth item directs that his estate be settled up as soon as it can be done without loss or sacrifice of property, and without law if possible,--'anything that my executors cannot settle leave it to arbitration, without the interference of clerks, sheriffs, lawyers, or marshals.'

The probate court proceedings, upon which the deed of distribution is founded, are in substance as follows: The executors of I. D. Hart filed a petition on the 18th day of November, 1865, showing, among other things, some indebtedness of the testator, and alleging that there was a large number of vacant town lots in the city of Jackson ville, for which there was great demand; and that by a sale of these lots money could be raised to meet all the liabilities of the estate, and the balance be more equitably distributed among the legatees by their bidding for their respective shares than by any other method of distribution and that a large part of the real estate belongs, under the will, to three minors, to be distributed to them, and praying an order of sale. The judge of probate being absent from the county, the clerk of the circuit court, acting under the statute of ...