56 Fla. 779 | Fla. | 1908
The original bill in this suit was filed by the appellees as complainants against the appellants and other parties as defendants, in the Circuit Court for Brevard County, on the 25th day of November, 1901. The bill was amended several times in important particulars by leave of the court, additional parties wlere made defendants, various and sundry proceedings were had and different interlocutory orders were made during this protracted litigation. The transcript of the record covers over three hundred typewritten pages. However, in view of the conclusion which >we have reached, we deem it unnecessary to set forth the numerous pleadings, proceedings and orders in detail or to make any extended statement of the acts. Stated in a very condensed way, the bill sought partition of a large tract of land situated in the counties of Volusia and Brevard between the appellees and the appellants, 'the appellees alleging .therein that they were seized and possessed of and entitled to an undivided one-half interest therein and that the appellants were entitled to the other undivided ' one-half interest. The other defendants were . made parties by reason of their being lessees or tenants of the appellants, but, as they have not joined i.n the appeal, it is unnecessary for us to consider the decree appealed from in so far as i.t affects them or
Sections 1939 to 1946 inclusive of the General Statutes of 1906, formerly Sections 1490 to 1497 of the Revised Statutes of 1892, regulate partition proceedings in this state. They have been construed several times by this court. See Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 South. Rep. 722, S. C. 111 Amer. St. Rep. 77, and authorities there cited; Girtman v. Starbuck, 48 Fla. 265, 37 South. Rep. 731, S. C. 5 Amer. & Eng. Ann. Cas. 833; Williams v. Clyatt, 53 Fla. 987, 43 South. Rep. 441; Koon v. Koon, 55 Fla. 834, 46 South. Rep 633. As was held therein, a partition suit is not the proper proceeding in which, to settle a disputed title, though, whenever the case is properly one of partition, one whose bona fide abject is the partition of lands between common owners thereof, one or more of whom are complainants and the others are defendants, and they or some of them are in possession, then all controversies between them as to the legal title and right of possession may .and should be settled by the Chancellor, as authorized by the statute. However, as is also held therein, a suit for partition cannot be resorted to as a substitute for ’ the action of ejectment, nor used for the sole purpose of testing a legal title. As is provided by section 1941 of the General Statutes of 1906, a bill in chancery for partition “may be filed by any one or more of several joint tenants, tenants in common or coparceners, against their cotenants, coparceners or others interested in the lands to -be divided.” This statute is in'line with the general statutory provisions prevailing in other jurisdictions. See 21
We find that the paper title of the complainants, which is based upon a deed executed to their ancestor, Margaret J. Sanchez, under whom they claim, bearing date the 24th day of November, 1859, by Bernardo Segui, by Venancio Sanchez, his attorney in fact, must fail for the reason that at the date of the execution thereof Bernardo Segui was dead. The testimony clearly establishes that Bernardo Segui died on the 15th day of November, 1859, nine days before the execution of such deed. As was held in Harper v. Little, 2 Greenleaf (Me.) 14, S. C. 11 Amer. Dec. 25, “a power of attorney given to an agent to sell and convey lands is revoked by the principal’s death and a deed made by the agent thereafter, but before receiving information of the death, is void.” Also see 1 Amer. & Eng. Ency. of Law (2nd ed.) 1223 and authorities cited in note 1. As was said in McGriff v. Porter, 5 Fla. 373, text 380: “That a mere naked power, whether founded upon a valuable consideration or not, is revoked by the death of the party creating it, is not only well settled upon authority, but it results as a necessary consequence from the nature and character of such power. * * * If the power is executed by the donee or grantee thereof, it must necessarily be executed in the name of the donor or grantor, who alone possesses the title and estate in the property, he not having parted with it by any transfer or conveyance thereof, and he being dead it would be simply an absurdity to execute a sale and conveyance in the name, and as the act of a dead man. The death of the party, therefore, in such case, operates as a
We take up next for consideration the claim of the complainants based upon the alleged judgment rendered in favor of their ancestor in an action of ejectment instituted by Bernardo Segui’s heirs against her. We find that such judgment, after reciting the verdict of the jury in favor of the defendant, is as follows: “Enterprise, Fla., Nov. 16, 1883. Whereupon it is ordered, considered and adjudged that judgment be entered up for the defendant, Margaret J. Sanchez, and that the defendant do have and recover her costs amounting to $ Wm. Archer Cocke, Judge.” We are of the opinion that this cannot be considered a (final judgment, but, at best, must be held simply to be an order for such judgment, Which, so far as is disclosed, has never been entered. See Starke v. Billings, 15 Fla. 318; Hall v. Patterson, 45 Fla. 353, 33 South. Rep. 982; Dexter and Connor v. Seaboard Air Line R. Co., 52 Fla. 250, 42 South. Rep. 695; McGeachy v. Bush, 55 Fla. 340, 45 South. Rep. 848 and authorities there cited; Mitchell v. St. Petersburg & Gulf Ry. Co., 56 Fla. 497, 47 South. Rep. 794, for a discussion as to the essentials of a final judgment. Lincoln v. Cross, 11 Wis. 91, and McTavish v. Great Northern Ry. Co., 8 N. Dak. 333, 79 N. W. Rep. 443, will also be found to bear upon the point.
Various and sundry Objections were made against the admission of the certified transcript of the proceedings in the ejectment 'action in evidence, and argument is made here as to its effect and conclusiveness. We deem it unnecessary to discuss- these points in detail. Section 1966 of the General Statutes of 1906, Which was originally enacted in 1859, expressly provides that “the party plaintiff may bring his suit against the party in possession
“2. Plea. — The plea of ‘not guilty’ shall put in issue the title of said lairds in controversy. Such plea shall be held to admit the possession of the defendant, or in case of an adverse claimant, the adverse claim of the defendant. Should the defendant wish to deny possession, it shall be done by special plea.”
As our action of ejectment is purely statutory, nei'ther the statutory declaration nor the plea of not guilty oould be held to be admissions of the nature, character, extent or duration of the defendant’s possession. At best, the plea of not,guilty could only be held to> admit the possession of the defendant at 'the time of the institution of the action.
One other matter it may be well to, notice. In his answer the appellant, Dallam, denies that Margaret • J. Sanchez ever at any time conveyed an undivided one-half interest or any other interest in such lands to the heirs of Bernardo Segui. The complainants offered in evidence a certified copy of a deed bearing date the 17th day of November, 1883, from Margaret J. Sanchez to Agatha O’Brien as trustee for herself and the other heirs at law of Bernardo Segui, deceased, to an undivided one-half interest in the lands in question. The defendants objected to the same on various grounds, which, however,
We now take up the claim of title and right to partition based upon possession of such lands under color of title fo'r the requisite statutory period of seven years. Conceding 'that the deed from Bernardo Segui, by his attorney in fact, to the ancestor of complainants, even though void for thie reasons wre have stated, would be sufficient to form color of title, does the evidence show that the requirements of Section 1721 of the General Statutes of 1906 as to occupation and possession were