55 Fla. 374 | Fla. | 1908
—-The defendant in error brought an action of ejectment against the plaintiff in error in the circuit court of Santa Rosa county in November, 1906. The case was tried at the spring term, 1907, which resulted in a verdict and judgment for the plaintiff, which the defendant seeks to reverse on writ of error.
The plaintiff deraigned title to the lands sued for, vis: ,Nw% and of swj4 section 34, township 4, N. R. 27 west, by introducing in evidence a patent of the United States, dated April 1st, 1862, conveying said lands to William A. West, and by a deed from' William A. West and wife, Mary U. West, to M. A. Harrison dated December 3rd, 1903, and by a deed from M. A. Harrison to Mrs. Florence Collins dated April 15th, 1904, and by deed from Florence Collins and R. E. Collins, her husband, to Thomas F. West, dated July 15th, 1904, and by deed from Thomas F. West and wife to The Robinson Point Lumber Company, a corporation, the plaintiff, dated July 16th, 1905.
It was agreed that the defendant was In possession of the said lands under a portion of the -heirs of W. D. J. Collins and Pamelia - A. Collins, beginning December 13 th, 1905.
Assignments one and thirteen are based on the ruling of the trial court in overruling the objections of the defendant to the deed from Thomas F. West and wife to The Robinson Point Lumber Company, the plaintiff, and in refusing to strike the same. The objections to the deed in both instances were that it was not sealed.
In the type-written transcript of the record before us the word “seal” enclosed in parentheses follows the names of Thomas F. West and Mrs. Alma West, signed to the said deed, and the testimonial clause immediately preceding the signatures is: “In witness whereof we have hereunto set our hands and seals this 16th day of July, 1905. ” As the transcript must be presumed to be correct,
Assignments two, five, seven, eight, ten and fifteen are treated together, as they each relate to the action of the trial court in striking from the depositions of William A. West and his wife, Mary West, a copy of a deed executed by them to P. A. Collins, wife of W. D. J. Collins, in 1874, and an affidavit of W. A. West made in 1906. The defendant claimed to be in possession of the land in dispute through the heirs of W. D. J. Collins and wife. Mr. and Mrs. West were very old people —Mr. West being over ninety years old. _Mrs. West did not know her exact age", but states she had been married to- W. A. West fifty-two or fifty-three years- or more. It is evident from their testimony that their recollection of past events was very uncertain. Their depositions were offered in evidence by the defendant. Th object of their testimony in part was to show that they had made a deed of the lands in controversy in j 874 to Mrs. P. A. Collins the wife of W. D. J. Collins. They were shown a paper purporting to be a deed, but not under seal, executed by William A. West to Mrs. P. A. Collins on the 6th of November, 1874, in which West conveyed to Mrs. A. P. Collins the ne,r4 and wj4 of the se% of section 34, tp. 4 north, range 27 west, which description does not cover the land in controversy. This deed which was .contained in the depositions is the one which was stricken therefrom. The affidavit of West which was stricken from the depositions is in the following words:
‘'‘‘state OF ALABAMA,
COUNTY OF MONROE.
William A. West, being by me duly sworn deposes and says: That he is the identical William A. West, who entered in the United States Land office the follow*378 ing described lands, to-wit: The nwj4 and the west J4 of the swj4 of section 34, township 4, range 27 north and west, situate, lying and being in the county of Santa Rosa, state of Florida, that on or about the......day of .........A. D. 1859-60 by deed, for a valuable consideration, he conveyed the said lands to W. D. J. Collins his «heirs and assigns forever, last of Santa Rosa county, Florida; that at the time of the execution of the deed to M. A. Harrison by himself, bearing date of December 3rd, 1903, whereby he undertook to convey the above described lands, the said Harrison was cognizant of the fact that deponent had before conveyed the said lands to the said Collins for the reason that deponent then and there so informed him; that the execution of the said deed to the said Harrison came out in this way: I thought when I signed the deed to' Harrison that I was duplicating the original deed made by me in 1859, or 60, to Collins and not making any new conveyance • to any one, it was so represented to me by the parties. This land was deed to me from the government and I deed it to Collins on the above date and have ceased since that time to claim any ownership and believed when I made a deed to Harrison that I was duplicating the original deed to Collins.
his
William A. (x) West, mark
Sworn to and subscribed before me this 14th day of February, 1906.
W. C. Neville, State of Alabama, Justice of the Peace, Monroe County.”
A further object of the examination of W. A. West and his wife by the defendant was to show that they had made a deed to W. D. J. Collins of the land in controversy about 1859 or i860, which deed had been lost and that the deed made to Harrison in 1903 was made at
Assignments eleven and twelve are based upon the action of the court in refusing to strike the deed from W. A. West and wife to MJ. A. Harrison, dated December 3rd, 1903, under which by mesne conveyances the plaintiff claims 'title. The defendant proved -by D. C. Norris one of the witnesses to the deed, and by M. A. Harrison, the grantee, that the consideration for the deed was paid by D. C. Norris nnd W. W. Harrison, a brother of M. A. Harrison, and that when the land was sold they received the purchase money. It is contended that inasmuch as D. C. Norris was interested in the land he was incompetent to be a witness to it, and therefore the deed is void under the statute which requires that a deed of land shall be executed in the presence of two subscribing witnesses (Section 2448 Gen. Stats, of 1906). The defendant in error contends that under the statute (Section 1505 Gen. Stats, of 1906, first adopted by Section 1, Chap. 1983, Laws of 1874), the incompetency of witnesses because of interest was removed except as therein provided, and therefore that Norris was not incompetent at the time he witnessed the deed. Our decisions construing this statute furnish no< especial instruction upon this precise question and the information we get from the decisions of other courts in construing similar statutes is not of the most satisfactory kind. There is a luminous account of the origin of the statutes, both in England and' the United States, which remove the
Assignment sixteen complains of the affirmative charge given by the court in favor of the plaintiff. Tire defendant claimed the land under a portion of the heirs of W. D. J. Collins and his wife, P. A. Collins. He went into possession in December, 1905. It does not appear from the evidence that 'either of these parties ever had any paper title to the property in dispute. It appears that W. D. J. Collins had cut timber from the lands now and then from 1872 until 1880, or m'ay be later than that. He built a cabin on it for a camp for hands to stay in at night. It does not appear that Collins ever fenced or cultivated any part of the land. He never, therefore, acquired title by adverse possession under Sections 1721 or 1722 General Statutes of 1906, and none descended to his heirs.* Harris v. Butler, 52 Fla. 253, 42 South. Rep. 186. The defendant consequently was simply a trespasser. We are of the opinion that the court committed no error in giving the affirmative charge. See Cross v. Aby, decided at the present term.
No other assignment is urged.
The judgment of the court below is affirmed.
Taylor and Parkhill, JJ., concur;
Shackleford, C. J., Cockrell and Whitfield,JJ., concur in the opinion.