Tucker v. Cole

• Decision Date: 26 September 1941
• Citation: 148 Fla. 214,3 So.2d 875
• Parties: TUCKER v. COLE (two cases).
• Court: Florida Supreme Court

3 So.2d 875

148 Fla. 214

TUCKER v. COLE (two cases).

Florida Supreme Court

September 26, 1941

As Modified on Denial of Rehearing Oct. 20, 1941.

Appeals from Circuit Court, Marion County; J. B. Koonce judge.

W. E Smith, of Ocala, for appellants.

James M Smith, Jr., of Ocala, and J. W. Hunter, of Tavares, for appellees.

BUFORD, Justice.

We have for consideration the merits of appeals in two cases which have been consolidated and presented together here.

In the first case the decree denied and dismissed the petition whereby it was sought to vacate a decree pro confesso entered on the first day of November, 1909, and a final decree entered pursuant thereto on the 20th day of November, 1909.

In the second case the decree was in favor of the plaintiffs below, appellees here, adjudicating absolute fee simple title to the involved property to be in the plaintiffs.

If the plaintiffs be adjudged by us to have a clear fee simple record title to the property, or if plaintiffs be adjudged to have clear fee simple title to a part of the property and defendants be adjudged to be estopped to claim title as against the plaintiffs as to the remainder of the property, such adjudication will settle the rights of the parties and it will be unnecessary to discuss other contentions presented.

Whether or not the plaintiffs have a clear fee simple title depends upon whether or not a certain written instrument under seal is to be construed as a conveyance of title or as merely a bond for title. The involved written instrument is as follows:

'State of Florida

'Marion County.

'Know all Men By These Presents that I, B. M. Dell of the State of Florida and County of Alachua have this day bargained and sold aliened, confirmed and delivered unto R. J. Steele & J. W. Roper of the State of North Carolina & Co. of Richmond a certain tract or parcel of land situate, lying and being in the State of Florida and County of Marion on the South side of Orange Lake in Township Twelve (12) South of Range 22 East and North of Section 26 containing six hundred & forty acres (640), also two other parcels of land adjoining this containing 120 acres. The said Steele and Roper agreeing to pay me for the above named lands the sum of Six Thousand Dollars in three several installments as follows, viz. Two Thousand Dollars on the 20th February next, Two Thousand Dollars on the first of January 1856, Two Thousand Dollars on the first of January 1857 and I agree and bind myself, my heirs, executors administrators and assigns in the sum of Twelve Thousand Dollars to the said Steele & Roper to make them a title or deed to the above named land in fee simple when they have made me the third or last payment as above prescribed. In witness of which I have hereunto set my hand and Seal this the 18th day of December 1854.

'Bennet M. Dell (Seal)

'Attest

'John E. M. Templeton.

'State of Florida

'County of Marion

'Personally came before me A. S. Goin Clerk of the Circuit Court in and for the County and State aforesaid John M. E. Templeton a subscribing witness to the foregoing instrument of writing who being duly sworn deposes and says that he saw Bennet M. Dell sign, seal and deliver the same for the purposes therein expressed and that he subscribed the same as a witness. In testimony whereof I have hereunto set my hand and seal of office this 2nd January A. D. 1860.

'A. S. Goin, Clerk.'

The record shows that the instrument was duly filed and recorded on January 2nd 1860.

The fact that the instrument bears the signature of only one subscribing witness is of no moment now because the instrument may be considered valid under the doctrine applicable to ancient written documents. See Peninsular Naval Stores Co. v. Mathers, 96 Fla. 620, 119 So. 333; 18 C.J. 421, § 498; 26 C.J.S. Deeds, § 188.

If the instrument was a deed of conveyance, it comes within the purview of Chapter 10169, Acts of 1925, Section 5695 and 5696 C.G.L.

With these points aside and bearing in mind that all parties claim from a common source, that is from Bennet M. Dell, we come to the matter of construing the instrument, supra.

The record shows that at the time the written instrument was executedDell had received a patent from the United States Government issued May 15, 1852, conveying to him lots 1, 2, 3, 4, 5, 6, 8 and 9 of Section 23, Township 12 South, Range 22 East, and had also received patent from the United States Government, bearing the same date, conveying lot 9 of Section 24, Township 12 South, Range 22 East. It shows that after the conveyance by Dell, Dell received patent dated May 1, 1855, conveying lot 8 of Section 24, Township 12 South, Range 22 East, and also received from the United States Government a patent dated April 1, 1859, conveying the N.W. 1/4 of N.E. 1/4 of Section 26 and lot 7 of Section 23, Township 12 South, Range 22 East.

We find by reference to plat in the record that all the lands patented to Dell in 1852, Lots 1, 2, 3, 4, 5, 6, 8 and 9 are in Section 23 and lie south of Orange Lake and north of Section 26.

Lot 9 in Section 24 lies south of Orange Lake but not north of Section 26. Lot 7 of Section 23 lies south of Orange Lake and north of Section 26 but Dell did not receive the patent to that lot until after April 1, 1859.

The description in the instrument was sufficient to identify lots 1, 2, 3, 4, 5, 6, 7, 8 and 9 of Section 23, Township 12 South, Range 22 East, and it appears from the plat that it would require more than all of the land lying between Orange Lake and the north boundary line of Section 26 to make up the 640 acres as stated in the instrument.

The rule as to after acquired title in grantor is applicable to lot 7 in section 23. As stated in 8 R.C.L. 1058, § 110, it appears that,

'As a general rule, when a person conveys land in which he has no interest at the time, but afterwards acquires a title to the same land, he will not be permitted to claim in opposition to his deed, from the grantee, or any person claiming title from the grantee.'

See cases cited in support of text.

The document relied on by plaintiffs below as a muniment of title did not contain a description sufficient to identify or pass title to the lands therein referred to as 'two other parcels of land adjoining this containing 120 acres', but it did contain a sufficient description to identify that part of section 23 lying south of Orange Lake and north of Section 26.

Neither do we perceive the existence of any element of estoppel which will bar the defendants in the court below from asserting title to those lands not included in the area south of Orange Lake and north of section 26.

The Circuit Court held the instrument, supra, to be a deed because by its terms, viz:

'Know all Men By These Presents, that I., B. M. Dell, of the State of Florida and County of Alachua, have this day bargained and sold, aliened, confirmed and delivered unto R. J. Steele and J. W. Roper of the State of North Carolina & Co. of Richmond, a certain tract or parcel of land', * * * the instrument conveyed a present estate.

We concur in such construction.

In 16 Am.Jur. 448 Sec. 20, the text is:

'In order that an instrument purporting to convey title to land or an interest or estate in land may be valid as a deed and operative to pass such title to or interest in land, it is essential that there be a grantor, a grantee and a thing granted, and that it convey a present interest or estate. It is further necessary that the instrument be signed by the grantor, someone whom he directs to sign for him, or his authorized agent, be attested and acknowledged in conformity to the local statutory...