Walker v. Lee

• Decision Date: 20 March 1906
• Citation: 40 So. 881,51 Fla. 360
• Parties: WALKER et al. v. LEE.
• Court: Florida Supreme Court

40 So. 881

51 Fla. 360

WALKER et al. v. LEE.

Florida Supreme Court, Division A.

March 20, 1906

Error to Circuit Court, Jackson County; Francis B. Carter, Judge.

Action by Frank H. Walker and others, to the use of M. V. Patrick against D. J. Lee. Judgment for defendant, and plaintiffs bring error. Affirmed.

Syllabus by the Court

SYLLABUS

If the description of the land conveyed in a deed is such that a surveyor, by applying the rules of surveying, can locate the same, such description is sufficient, and the deed will be sustained, if it is possible from the whole description to ascertain and identify the land intended to be conveyed.

An objection to the admissibility of a deed in evidence, on the ground 'that the description of the premises conveyed by said deed was so vague and uncertain as to render such description void,' should be overruled, unless such description is so vague, indefinite, and uncertain as to render it nugatory, and therefore void on its face. To render such deed inadmissible, it must be apparent on its face that the land intended to be conveyed therein could not be identified and located.

A motion to strike out a deed from the evidence 'upon the ground that the description of said deed was so indefinite and uncertain as not to describe any land and to be void, and upon the further ground that the surveyor could not take the deed and locate the land, as shown by the testimony of said Smith,' a witness for defendant, at whose instance the deed had been introduced in evidence, over the objections of plaintiffs, is properly overruled, when the description is not void upon its face, and the defendant had not introduced all of his evidence.

Where a deed has been admitted in evidence over the objections of plaintiffs, and subsequently thereto, even though plaintiffs may have established by the defendant's witnesses that the land described in the deed could not be identified or located, that did not entitle the plaintiffs as a matter of right to have the deed stricken out on motion; their remedy being to ask for appropriate instructions from the court to the jury concerning the effect of the deed as evidence though the court might, in the exercise of its judicial discretion, grant the motion to strike it out.

A motion to strike out evidence that has been introduced in a cause must be predicated upon some feature of irrelevancy incompetency, legal inadmissibility, or impertinency in the evidence itself. Where evidence has been introduced by a party, whether plaintiff or defendant, that in itself is pertinent, relevant, legal, and proper so far as it goes, but which, in the conception of the opposite party, falls short for the want of proof of other necessary facts, the proper practice for such party is to ask for appropriate instructions from the court to the jury.

Where error is predicated upon the giving of an instruction to the jury upon the sole ground that 'there was no evidence upon which to justify it in several different points,' no attack being made on the instruction on the ground that it did not set forth the law correctly in the abstract, or that it invaded the province of the jury in trenching upon the facts, or that it was erroneous in any particular save in the one named, and we find that there was evidence to warrant the instruction, though there was much conflict therein, no error was committed in giving the instruction.

Evidence examined, and found sufficient to support the verdict.

COUNSEL

Benj. S. Liddon, for plaintiffs in error.

OPINION

SHACKLEFORD, C.J.

This is an action of ejectment, instituted by the plaintiffs in error against the defendant in error in the circuit court in and for Jackson county to recover possession of the E. 1/2 of lot 2, section 35, township 7 N., range 8 W., containing 40 acres, more or less, and for mesne profits. The defendant filed a plea of disclaimer except as to so much as is included in the following metes and bounds, to wit 'Beginning at a point 27 chains and 15 links east of southwest corner of fractional section 26; thence south, along an old head road, 19 chains and 64 links; thence east, 12 chains and 66 links; thence north, 6 chains; thence north 30 degrees east, 2 chains and 10 links; thence north 10 degrees east, 11 chains and 42 links; thence north 22 degrees west, 54 links; thence west, 15 chains and 57 links, to point of beginning, being 27.83 acres'--and as to this a plea of not guilty was filed. Plaintiffs admitted the plea of disclaimer to be true and joined issue upon the plea of not guilty. A trial was had, which resulted in a verdict and judgment for the defendant as to the portion litigated. This judgment the plaintiffs seek to have reversed here upon writ of error returnable to the present term. Both M. V. Patrick, for whose use the action was brought by plaintiffs, and who is the real plaintiff, and the defendant, claim title through a common source--that is, through deeds from Frank H. Walker et al.; the real question to be determined being as to which title so derived from the same source was paramount.

The first assignment is that 'the court erred in admitting in evidence a deed of Frank H. Walker et al. to D. J. Lee.'

Turning to the bill of exceptions, we find that the ground of objection urged against the introduction of this deed in evidence was 'that the description of the premises conveyed by said deed was so vague and uncertain as to render such description void,' which objection was overruled by the court and the deed admitted in evidence.

The description of the land conveyed by the deed was as follows: 'One lot, strip, piece, or parcel of land lying and being situate in the northeast corner of the Walker plantation, adjoining a few feet the Chattahoochee river, containing about twenty-five (25) acres approximately, and more minutely described by metes and bounds as follows: Bounded on the north by Neal's Ldg. or lands of D. J. Lee; on the east by Chattahoochee river and lands of Frank H. Walker and R. L. Walker; on the south by lands of Frank H. Walker and R. L. Walker and C. C. Liddon; and on the west by lands of Tom Bell--all of which is lying and being situated in the aforesaid state and county.'

As we said in Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656: 'While it is true that if the description of the land conveyed in a deed is such that a surveyor, by applying the rules of surveying, can locate the same, such description is sufficient, and the deed will be sustained, if it is possible from the whole description to ascertain and identify the land intended to be conveyed, it is also true that the description must be sufficiently definite and certain to enable the land to be identified; otherwise, it will be held void for uncertainty.' Also, see, Commyns v. Latimer, 2 Fla. 71; Bellamy v. Bellamy's Adm'r, 6 Fla. 62; Campbell v. Carruth, 32 Fla. 264, 13 So. 432; Buesing v. Forbes, 33 Fla. 495, 15 So. 209; Devlin on Deeds (2d Ed.) §§ 1010 to 1014, inclusive, and numerous authorities cited in notes; Warvelle on Ejectment, § 292.

The description of the land in the deed in question is not so vague, indefinite, and uncertain as to render it nugatory, and therefore void on its face. It is not apparent that the land intended to be conveyed could not be identified and located. We are clear that no error was committed in admitting the deed in evidence.

The second assignment is that 'the court erred in refusing to strike out, upon motion of the plaintiff, the deed of F. H. Walker et al. to D. J. Lee.'

We find that the defendant introduced as a witness in his behalf L H. Smith, who testified, among other things, that he was a farmer and surveyor; that he had surveyed the land twice during the year 1904, at the instance of the defendant, and he identified the plat and memorandum of the survey made by him, which were admitted in evidence, the description of the land thereon being the same as that set forth in the plea of disclaimer filed by the defendant, as to which he claimed the title; that he could not identify the land he surveyed as being the land described in the deed to defendant, which had been objected to by plaintiffs, but which the court had admitted, and neither could he say that the land which he surveyed was included in the land described in the declaration of plaintiffs; that the survey was made strictly under the direction of the defendant, who gave him the starting point, and told him where to start, and each line to run, and where to run to; that he did not know that the lands he surveyed were bounded by the lands of C. C. Liddon, D. J. Lee, Frank H. Walker, R. L. Walker, and Tom Bell, and did not know where the lands of any of these parties were located, but did know the location of Neal's Landing, which was nearly a half mile from the lands he surveyed; that he could not take the deed to defendant and find the land described therein, unless he knew where the lines of the parties described therein as owning lands bounding the land described in the deed were located, but that if he knew these lines he could locate the land in...