55 Fla. 311 | Fla. | 1908
—The defendants in error brought an action of ejectment against the plaintiff in error in the circuit court for Santa Rosa county, which resulted in a verdict and judgment for the plaintiffs, which the defendant seeks to have reviewed here upon writ of error.
No error is assigned in connection with the pleadings, the declaration being in the usual form, to which the defendant interposed a .plea of not guilty.
The first assignment is as follows: “The ruling of the court in overruling the objection of the defendant to the admission in evidence of the power of attorney from Nannie L. Aby and R. H. Aby to H. F. Mints.”
We find from the bill of exceptions that the only grounds of objection interposed to the admissibility of this evidence were that “the. signature of R. H. Aby
It is settled law here that this court cannot consider any grounds of objection to the admissibility of evidence, except such as were made in the court below; the plaintiff in error being confined to the specific grounds of objection'made by him in the trial court, and only sucn of those grounds will be considered by this court as are argued before it. Pittman v. State, 51 Fla. 94, 41 South. Rep. 385, S. C. 8 L. R. A. (N. S.) 509, and authorities therein cited; Seaboard Air Line R. Co. v. Scarborough, 52 Fla. 425, 42 South. Rep. 706; Platt v. Rowand, 54 Fla. 237, 45 South. Rep. 32. The first three grounds of objection are the only ones'urged before us. As was said in Kendrick v. Latham, 25 Fla. 819, text 844, 6 South. Rep. 871, text 877, “In the absence of evidence to the contrary, an alteration will be presumed to have been made contemporaneously with the execution of the instrument, and properly made, if nothing appears to the contrary.” Also see authorities there cited, especially Stewart v. Preston. 1 Fla. 10, S. C. 44 Amer. Dec. 621. The following authorities will also prove instructive: Ward v. Cheney, 117 Ala. 238, 22 South. Rep. 996; Hammon’s Evidence, page 132, and authorities cited in notes; 1 Ency. of Ev. 773, 810; Abbott’s Trial Brief, Mode of Proving Facts (2nd ed.) 149 et. seq:a; 2 Elliott’s Evidence, Section 1516. It is undoubtedly true that in some aspects this has proved a vexed question for the courts and there is irreconcilable conflict in the authorities, but this court is committed to the rule announced in Stewart v. Preston, supra, and Kendrick v. Latham, supra, which two cases are approvingly cited in City of Orlando v. Gooding, 34 Fla. 244, 15 South. Rep.
It is urged before us by the defendant that the instrument in question is not a deed or mortgage and therefore entitled after the recordation thereof to admission in evidence without proof of its execution under the provisions of section 21 of article 16 of the state constitution of 1885. We do not feel called upon to' pass upon this contention. In fact, it would not be proper for us to do so, since no such ground of objection was made below. In addition to the authorities already cited, see Marsh v. Bennett, 49 Fla. 186, 38 South. Rep. 237. The first assignment must fail.
The next assignment urged before us is the third, which is as follows:
“The ruling of the court in sustaining the objection of plaintiffs to the testimony of the witness J. W. Collins that the deed from James P. Mints to W. D. J. Collins had the same' form and appearance as other deeds.”
The bill of exceptions discloses that the plaintiffs had introduced in evidence as their basis of title a patent from the United States to Samuel P. Mints to the lands in controversy, deeds from the heirs of said Mints and also conveyances from their grantees to plaintiffs. The defendant sought to establish the fact that in his lifetime Samuel P. Mints, (in the assignment of error and also in the testimony referred to as James P. Mints, without
“Thereupon the plaintiffs by their counsel objected to the testimony of this witness that this deed was in the same fopm as other deeds upon the ground that it was incompetent, which objection was sustained by the court, to which ruling of the court the defendant then and there excepted.”
We are not advised what question was propounded to the witnesses, whether it was objected to or whether it was sought to have the answer of the witness thereto stricken out on motion. It is the duty of a party resorting to an appellate court to make the errors complained of clearly to appear, if they in truth exist; every presumption being in favor of the correctness of the rulings of the trial court. Ropes v. Stewart, 54 Fla. 185, 45 South. Rep; 31, and authorities there cited. Whether the ruling complained of was made upon_objecti'ons to the question or upon a motion to strike out the answer, we are of the opinion that no error is made to appear.
The fourth assignment is “The ruling of the court in sustaining the objection of plaintiffs to defendant’s counsel asking the witness, Barnhill, what his impression was as to whether the paper describing the land in controversy which he saw in the possession of Mrs. Barnhill was a deed from J. P. Mints to W. D. J. Collins and stating that the witness must testify directly whether he remembered or did not remember.”
The witness had 'been produced by the defendant and had just testified on his direct examination that he could not say that he ever saw in the possession of Mrs. Barn-hill the deed of Mints, the entryman, to the land in question. Whereupon he was asked by the defendant the following question: “What is your impression in regard to it?” which was objected to by the plaintiffs “because it calls for the impression of the witness,” which objection was sustained, the court stating that the witness “must testify direct whether he remembers oir whether he don’t remember.” We find that at the time this question was asked the witness had not indicated that he had any knowledge whatever as to the existence of any such instrument. This court in Chaires
The same witness was subsequently asked by the defendant if he had not testified on a former trial that, while he could not say positively, his impression was • that a certain paper he had seen was a deed. The sustaining of the plaintiffs’ objection to this question forms the basis for the fifth assignment. This assignment must likewise fail for the reason that it was sought by the question so objected to to put in evidence in an indirect and improper manner the impression of, the witness as to the paper, which impression had already been excluded when offered directly, as we have seen in disposing of the fourth assignment. The question is also violative of the rule laid down in Sylvester v. State, 46 Fla. 166. 35 South. Rep. 142. See the seventh headnote.
• The sixth, seventh, eighth and ninth assignments are discussed together by both the defendant and the plaintiff, and we shall so treat them. Certain witnesses had
The basis for the tenth assignment is as follows: the defendant was asked by his counsel what was the value of the lands in controversy about the first of last year? This was objected to by the plaintiffs on the grounds of irrelevancy and immateriality, which objection was sustained. We are not advised by the transcript for what purpose this question was asked or what the answer thereto would have been. __ If, as the defndant contends in his brief, it was sought to establish' the fact that the plaintiffs were not innocent purchasers of the lands for value but paid only a nominal sum' therefor, we fail to glean that from the transcript or that its materiality was made known to the trial court, and, under these circumstances, we are not warranted in saying that the court erred in excluding it.
The eleventh assignment is based upon the refusal of
The twelfth assignment is predicated upon the giving of the following charge by the court:
“The proof must be clear and convincing, not only that such a deed existed, but that it was a valid deed, that it had all of the essential parts which a deed should have, such as the name of the grantor, the granting clause, the land conveyed, the consideration for which conveyance was made, words of perpetuity, as we call it, that is that the grant should be to some one and the heirs; in this instance that it should have been to W. D. J. Collins and his heirs and that it should have been signed by the parties who conveyed the land—in this instance by Mints; that it should have been sealed by a scroll or scrawl or some other seal; that it should have been signed in the presence of witnesses.”
After giving that portion of the charge upon which
“When all of these things are proven to your satisfaction by a preponderance of the testimony, then you would be entitled to find that such a deed existed, but if any one of these essential facts is not proven to your satisfaction by a preponderance of the testimony, you cannot guess at it, and say because somebody saw a deed, it was probably a deed to this land from Mints to Collins.”
Upon this portion of the charge the thirteenth assignment is based.
Immediately after these, words, in the same paragraph, the court further proceeded to charge the jury: “You must be sure, in other words, not beyond the possibility of a doubt, but you must be sure as reasonable men, from the evidence produced in court in this case that is from the preponderating weight of that evidence, that about the time it is claimed in the testimony, that is between i860 and 1866, there did in fact exist a deed of the character which I have described to you, making a valid conveyance of the land in controversy, from the entryman Mints to W. D. J. Collins, the ancestor of the parties who conveyed to the defendant in this suit.”
Upon this portion of the charge is predicated the fourteenth assignment.
What we have said in disposing of the twelfth assignment applies with equal force tO' these two assignments, so we simply refer to what' was there said, the authorities there cited and the reasoning employed in them. Also see Morrison v. State, 42 Fla. 149, 28 South. Rep. 97, and Marshall v. State, 54 Fla. 66, 44 South. Rep. 742. We would further add that, after a most careful consideration of all the evidence adduced by the defendant, we are clear that it failed to establish the fact
Prior to the giving of those- portions of the general charge upon which the twelfth, thirteenth and fourteenth assignments were based, the court had instructed the jury that “the burden of proof is upon the plaintiff, first, to establish title and right of possession prima facie. This the plaintiff has done, by producing a patent from the government to a man named Mints, and deraigning his title from Mints to himself, or themselves.” The fifteenth assignment is based upon the last sentence of the portion of this charge. In support of his contention, the defendant cites and relies upon Baker v. Chatfield, 23 Fla. 540, 2 South. Rep. 822. It is undoubtedly settled law here that it is error for a circuit judge to charge a jury otherwise than upon the law of the case. We fully approve of what was said upon this point in the cited case, but in that case the evidence was not incor-' porated in the bill of exceptions, hence was not before the court for consideration, while in the instant case all the evidence is so incorporated. We are of the opinion that the trial court committed technical error in giving this portion of the charge, but we are further 'of the opinion that, viewing the whole evidence, it is apparent no prejudice to defendant’s rights could have resulted therefrom. See Metzger v. State, 18 Fla. 481, approvingly cited upon this point in Baker v. Chatfield, supra; Brown v. State, 18 Fla. 472, and authorities cited therein; Williams v. LaPenotiere, 32 Fla. 491, 14 South. Rep. 157; Southern Pine Co. v. Powell, 48 Fla. 154, 37 South. Rep. 570; Thomas v. State, 47 Fla. 99, 36 South. Rep. 161.
The sixteenth assignment is based upon the giving
“If you should- find from the evidence that plaintiffs have produced conveyances in proper -form, by which'the property in controversy was conveyed by the United States to James P. Mints, and that he died intestate leaving heirs, and that thereafter his heirs conveyed by proper conveyances the land in controversy to the plaintiffs- or to persons who subsequently conveyed to plaintiffs then you should find for the plaintiffs, ■ unless the defendants have produced clear and satisfactory evidence that James P. Mints in his lifetime by a deed executed in proper form and containing operative words of conveyance conveyed the property to W. D. J. Collins and that said deed had been lost.”
The authorities cited in disposing of the twelfth assignment are equally in point here, .and this assignment must fail.
The seventeenth assignment is based upon the giving of the following instruction, at the request of the plaintiffs :
“The mere fact, if it be a fact, that W. D. J. Collins paid taxes on the land in controversy, or that he claimed to own it, of 'that.- he cut logs or timber from it," or that the land was'reputed in the community to belong to Collins, or that he built and maintained a log camp upon it, or that a part of the property was set apart to his widow for dower,- would'not and'does-not give him titlé to the land. If plaintiffs have shown a paper title in themselves for the land; tracing such-title from James' P: Mints; then’they'are entitled to recover in this suit; unless the defendants have produced clear and satisfactory evidence that James P. Mints in. his lifetime by'a deed executed in proper form and containing operative words of conveyance conveyed the property to W. D. J. Collins and that said deed had been lost.”
The next assignment urged before us is the twentieth, which is based upon the refusal of the court to give the following instruction requested by the defendant :
“The different essential features of a lost deed, as signing, sealing, consideration and witnesses, may be shown by circumstantial evidence; that is by proof of circumstances from which the probability i's that such facts existed.” •
In so far as this instruction stated the law correctly upon the points embraced therein, such principles had already been fully covered by the charge given by the court and by other instructions given at the defendant’s request, as will be found by referring to our treatment of the twelfth assignment. No error, therefore, was committed by the court in refusing to give it. See Seaboard Air Line R. Co. v. Scarborough, 52 Fla. 425, 42 South. Rep. 706, and authorities there cited.
We come next to the twenty-first assignment, which is based upon the refusal of the court to give the following instruction requested by the defendant:
“A consideration is presumed in a deed executed under seal without actual proof of such consideration.”
It would -be a sufficient disposition of this assignment to state that, in our opinion, the defendant had failed to establish by competent and- satisfactory evidence the execution of the alleged lost deed under seal, therefore the refusal to give such requested instruction could have
The twenty-second assignment is predicated upon the refusal of the court to give the following instruction requested by the defendant:
“Even if W. D. J. Collins did not have a good and valid deed conveying to him the lands in question, if he had what purported to be such a deed and was color of title and under it was in actual possession of the land for more than seven years, openly, adversely, notoriously ■ and continuously, this would give him title as against J. P. Mints or his adult heirs not under disability.”
Suffice it to say that the evidence adduced in this case did not warrant or call for the giving of such requested instruction, therefore no error was committed in refusing it. See Harris v. Butler, 52 Fla. 253, 42 South. Rep. 186, and authorities there cited.
This brings us to the consideration of the twenty-third and last assignment, which is based upon the overruling of the motion for a new trial. The only ground of this motion which is Urged before us is that the evidence was not sufficient to support the verdict. We are of the opinion that the verdict finds ample support in the evidence, and, following the established practice in this court, we must refuse to disturb it. See-Seaboard Air Line R. Co. v. Scarborough, supra, and McNish v. State, 47 Fla. 69, 36 South. Rep. 176, and authorities there cited.-
Finding no reversible error, the judgment must-be affirmed and it is so ordered.
Cockrell, and Whitfield, JJ., concur;
Taylor, .Hocker and Parkhill, JJ., concur in the opinion. ,
