Worrell v. Ford
| Decision Date | 10 March 1926 |
| Citation | 109 So. 440,91 Fla. 439 |
| Parties | WORRELL v. FORD. |
| Court | Florida Supreme Court |
On Rehearing, August 2, 1926.
Error to Circuit Court, Polk County; John S. Edwards, Judge.
Ejectment by M. Ellen Ford against Lillie Sikes Worrell. Judgment for plaintiff, and defendant brings error.
Reversed on rehearing, and a new trial granted.
See also, 107 So. 183, 648.
Syllabus by the Court
In ejectment, it may be shown under general issue whether, at time of conveyance, portion of land was adversely held by another, making conveyance inoperative as to such land. 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.
Judson & Hopper, of Lakeland, for plaintiff in error.
J. W Howell, of Lakeland, for defendant in error.
This cause having heretofore been submitted to the court upon the transcript of the record of the judgment herein and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said judgment. It is therefore considered, ordered, and adjudged by the court that the said judgment of the circuit court be and the same is hereby, affirmed.
On Motion for Rehearing.
Defendant in error obtained a judgment in ejectment for 5 feet of land west of a fence that the plaintiff in error claimed was the dividing line. Mrs. McGlashan owned the north half of a lot 145 feet wide. She sold 48 feet off the west side to the Worrells, and later sold 97 feet to Fords. There was a fence 53 feet from the true west line of the lot in the center of an alley. The Worrells supposed the fence to be the eastern boundary of their purchase and defended on that ground.
The controlling question in the case is whether, under the conveyance from Mrs. McGlashan to them of 'forty-eight (48) feet off the west side of the north 1/2 of lot one (1) block fifteen (15) of West Lakeland, the same being in Lakeland,' the Worrells intended to claim and did claim and occupy all of the land included within the two fences that stood on the western part of the north half of said lot 1, although the east fence is 5 feet more than 48 feet east of the true line of the west side of the lot. If the Worrells did so intend to claim and did claim and occupy adversely such 5 feet when the conveyance of the adjoining property to the Fords by Mrs. McGlashan was made, such conveyance was ineffectual as against the Worrells. See Liddon v. Hodnett, 22 Fla. 442; Watrous v. Morrison, 33 Fla. 261, 14 So. 805, 39 Am. St. Rep. 139; Bossom v. Gillman, 70 Fla. 310, 70 So. 364; Berry v. Perdido Realty Co., 84 Fla. 134, 93 So. 171; Acosta v. Gingles, 70 Fla. 13, 69 So. 717; Andreu v. Watkins, 26 Fla. 390, 7 So. 876.
Under the general issue it could have been shown that, under the conveyance by Mrs. McGlashan to the Worrells of 48 feet off the west side of the north half of lot 1, the Worrells intended to and did have and claim adverse possession of the western portion of the north half of the lot up to the east fence, which was 53 feet east of the true west line of the lot, so that the conveyance by Mrs. McGlashan of the eastern 97 feet of the north half of the lot to the Fords would not be effective against the Worrells because of their adverse claim and possession, as to the 5 feet west of the eastern fence, the width of the lot being 145 feet. Mrs. Worrell, testified that all she claimed was the 48 feet she bought, and that it was between the east and west fences, and that she cultivated shrubbery on the west side of the east fence, but she did not testify specifically that she occupied and claimed under the conveyance to her of 48 feet off the west side of the lot, the 5 feet west of the east fence, and that she so claimed and occupied the 5 feet when Mrs. McGlashan conveyed the east 97 feet of the lot to the Worrells.
While there is some evidence in support of the verdict, justice would best be subserved by granting a new trial.
Duly executed deeds conveying title to lands or tenements in this state operate under the statute of uses to transfer the possession to the grantees without livery of seizin or an actual delivery of possession, 'provided, that livery of seizin can be lawfully made of the lands or tenements at the time of the execution of the said deeds.' Section 3795, Rev. Gen. Stats. 1920.
If lands or tenements that are included in a deed of conveyance are adversely claimed and occupied by another, the grantor cannot give seizin or possession, and the deed of conveyance is inoperative as to the land so adversely claimed and occupied, since in such case the deed does not convey title which consists of (1) right of property, (2) right of possession, and (3) possession. If the possession of land is because of a mistake or an inadvertence, and it is not the intention of the one in possession to hold possession if he has no right to do so, such possession is not adverse, and will not render a conveyance by the owner inoperative.
Where the owner of land by a duly executed deed conveys a portion of the land to one grantee who intentionally takes and holds possession of a portion of the grantor's land that was not covered by the deed of conveyance, having a purpose and intent to hold it upon the claim...
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...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 'In an action of ejectment, it may be shown under the general issue whether, at the time a conveyance of land......
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...114 So. 383 94 Fla. 641 Lillie Sikes WORRELL, Plaintiff in Error v. Mrs. A. W. MILLER (formerly Mrs. A. W. McGlashan) for the Use and Benefit of M. Ellen Ford, Defendant in Error. Florida Supreme Court, Division B.October 13, 1927 ... Rehearing ... Denied Oct. 31, 1927 ... Error ... to Circuit Court, Polk County; H. C. Petteway, Judge ... COUNSEL ... Judson, ... Hopper & Bentley, of Lakeland, for plaintiff in ... ...