Tilman v. Niemira

• Decision Date: 21 April 1930
• Citation: 99 Fla. 833,127 So. 855
• Parties: TILMAN v. NIEMIRA.
• Court: Florida Supreme Court

127 So. 855

99 Fla. 833

TILMAN v. NIEMIRA.

Florida Supreme Court

April 21, 1930

Commissioners' Decision.

Error to Circuit Court, Brevard County; W. W. Wright, Judge.

Ejectment proceedings by Peter Niemira against A. A. Tilman. Judgment for plaintiff, and defendant brings error.

Reversed.

COUNSEL

W. S. Collins and J. W. Sisson, both of Titusville and F. W. Butler, of Melbourne, for plaintiff in error.

Smith Crofton & Wilson, of Titusville, for defendant in error.

OPINION

ANDREWS C.

Defendant in error, Peter Niemira, as plaintiff below, brought ejectment proceedings against plaintiff in error, A. A Tilman, as defendant below, involving property described in the amended declaration as follows:

Lot 8 in block D, according to the plat recorded in Plat Book 2, p. 108, Brevard county, Fla., records.

Issue was finally joined upon defendant's plea of 'not guilty'; and thereafter during the trial equitable pleas were allowed to be filed by the court.

After issue was joined and the case on for trial, stipulation was entered into between the parties as follows:

'It is stipulated and agreed by and between counsel for the respective parties in this litigation that the claim of title and title of each of the parties, if any, is derived from a common source, viz.: from one Joseph Duerbeck.

'For the purpose of simplifying the issues to be tried in this cause, it is stipulated and agreed that a certified copy of plat of Melbourne Beach commonly known as Maggie Johnston's plat of Melbourne Beach may be introduced in evidence as plaintiff's exhibit No. 2.

'It is further agreed that a certified copy of plat of North Indialantic By-the-Sea, may be introduced in evidence as Plaintiff's Exhibit No. 3, and that Lot 8, Block D, as shown on said plaintiff's exhibit No. 3, is the property described in the declaration, and that the property described in the declaration and shown as lot 8 Block D, on Plaintiff's Exhibit No. 3, is the South half (S 1/2) of Lot 4 of Block D Maggie Johnston's plat, shown as plaintiff's exhibit No. 2.'

Both parties by the first paragraph of the above stipulation admit claim of title from a common source--Joseph Duerbeck--making it unnecessary for either party to deraign title prior to him. The plaintiff, after filing the above stipulation, introduced in evidence: (1) the deed from Duerbeck to plaintiff dated March 15, 1921, describing the property as follows:

All of blocks A, excepting therefrom lots 5 and 6, all of block B, block C, block D, excepting lots 6, 7, and 8, block E, excepting lots 4, 24, and 25, block F, excepting lots 1 and 23, all block G, and block H, excepting therefrom lots 1, 2, 3, 4, 5, 6, and 14, in Maggie Johnston's plat of Melbourne Beach, together with all riparian rights; subject to incumbrances of record.

(2) Plaintiff's Exhibit 2, certified copy of the plat of Melbourne Beach, recorded in Plat Book 1, p. 50 (testified to as being Maggie Johnston's plat of Melbourne Beach) and (3) Plaintiff's Exhibit 3, certified copy of Joseph Duerbeck's plat of North Indialantic By-the-Sea recorded in Plat Book 2, p. 108. Plaintiff thereupon rested his case; whereupon defendant moved for a directed verdict which motion was denied.

It appears that plaintiff relied for a verdict in his favor solely upon his having better title evidenced by his deed which covers a considerable number of blocks and lots.

Thereupon defendant introduced in evidence a warranty deed from Duerbeck to Rudolf Philipp, dated September 28, 1921, which described the property as follows:

Lot 8 in block D, situated in North Indialantic By-the-Sea, in the county of Brevard, in the state of Florida, as shown on the townsite plat recorded in the office of the clerk of the circuit court, in and for said county of Brevard, in Plat Book No. 2, on page 180; being in Maggie Johnston's subdivision of Melbourne Beach.

A civil engineer testified after examination of the two plats noted above that he would have no difficulty in locating the land described in said deed. He also testified that the plat of North Indialantic By-the-Sea is recorded at page 108, Plat Book 2, and that there is no such page as 180, Plat Book 2.

Defendant next introduced in evidence the warranty deed, dated April 25, 1922, from Philipp and wife to A. A. Tilman, the defendant, describing the same property, giving the page in Plat Book 2 as 180.

Defendant then handed the same witness a contract of purchase covering the same property, executed by Duerbeck to Philipp, dated May 6, 1920, which was admitted in evidence, and, in answer to the court's question, the witness stated he could locate the land described in the contract as the same described in the above deeds and the declaration.

Duerbeck testified that his plat of North Indialantic By-the-Sea is a replat of a portion of the land covered by Maggie Johnston's plat, and that the contract of purchase with Philipp on May 6, 1920, was made with reference to the Duerbeck plat as a 'resubdivision of the Johnston plat'; and that he executed the warranty deed to Philipp on the same property when Philipp paid the $210 balance on September 28, 1921. Duerbeck further testified that the deed to Niemira was executed and delivered to him in Chicago, and that Philipp was actually living on lot 8, block D, in North Indialantic By-the-Sea, under his purchase contract at the time the deed to Niemira was made and delivered. He further testified that at the time the contract to Philipp 'elapsed' he gave Mr. Philipp an extension from January 1, 1921, when it was due, until he could be in a position to pay the balance of $210. J. E. Campbell testified that he was building a house in February, 1921, near lot 8, block D, and Philipp was at that time building a house on his lot and grubbing palmetto roots.

The defendant Tilman testified that he lives on lot 8, block D, Indialantic By-the-Sea, and went on there the 13th day of February, 1922; that, except for about a month, he had been there continuously and is still living there; that he knows Peter Niemira, and met him at defendant's place on the lot described in the declaration on the 24th of April, 1925; that Niemira had never asserted any claim that he knew of prior to that time, and that he (defendant) had lived there at that time nearly three years and improved the place by building a garage, by building additions on the house making it twice the size, by planting shrubbery and constructing a seawall; that he added to the value of the place several thousand dollars, and had been working continuously on it; that the garage was built in the summer of 1922, and the addition to the house was made about May or June of the same year shortly after he went there; and that Philipp and wife were living there in the house when he (defendant) bought the place, April 25, 1922. He further testified that in May, 1925, Niemira told him, if he would pay him $5,000, he would give him a quitclaim deed; later through Niemira's agent, Mr. Zack, he offered defendant a quitclaim deed for $2,500, but that he did not know either of these men prior to that time, and, both being strangers to him, he did not want to take sides in any controversy.

In the case of Worrell v. Ford, 91 Fla. 439, 109 So. 440, this court held that:

'In an action of ejectment, it may be shown under the general issue whether, at the time a conveyance of land was made, a portion of the land covered by the deed of conveyance was adversely held by another, so that the conveyance would be inoperative as to the land adversely held.'

In the case at bar, the record shows that at the time the deed to plaintiff was made to the lot, which was one of many covered by the description in that deed, it was improved and adversely held by defendant's immediate predecessor, Philipp; and therefore the deed to Niemira was inoperative as to the land held at the time adversely by defendant. In the case of Coogler v. Rogers, 25 Fla 853, 7 So. 391, 392, it was held that, where a...