23 Fla. 90 | Fla. | 1887
The Chibe-Jdsticb delivered the opinion of the court •:
This is a suit in ejectment by the heirs at law of James-Weeks, for the recovery of a tract of land in the county of Orange.
The defendant pleads that letters of administration were-granted to Stephen Weeks on the estate of said James-Weeks before the commencement of this suit, and that said Stephen Weeks was, at the commencement of the suit, and was at the time of the filing of said plea, administrator of said estate, and that said estate remains unsettled. The-plea was demurred to and raises the question as to the-right of the heirs at law to bring an action for the recovery of real estate belonging to their ancestor at the time of'
Ordinarily we would, after deciding that there were not .proper parties to a suit, decline to pass upon any of the other questions raised in the record, but in this instance, as it is virtually the title of James Weeks which is in issue, and the question being onlj7 as to who shall represent such title, •we feel justified in holding that this case is an exception
Two judgments were recovered in theUnited States Court at St. Augustine against one Aaron Jernigan on the respective dates of April 2d and April 6th, 1860. The tract of land iu dispute was levied on and sold by the Marshal on the first Monday iu July of the same year, at which sale Askew & Brock became the purchasers. The defendant claims title by deed from said Askew & Brock. The land is situated in Orange county and the judgments aforesaid were not recorded in said county. The plaintiffs-claim title as the heirs of James Weeks, deceased, who received a deed therefor from Jernigan on the 16th day of February, 1860, but which was not recorded until April 16th, 1860. Counsel for appellees insist that as the judgments were rendered in St. Johns county and were not recorded in the county of Orange where the land was situate the said judgments were nota lien on said lands, under our statute of February 12th, 1834, McClellan's Digest, page 619, sec. 2. The judgments were rendered in the United States Court and the county of Orange was a part of the district over which said court had jurisdiction. We are of the opinion that the judgments of the courts of the United States became a lien on any lands of the defendant lying-anywhere within the district over which the court has jurisdiction, and that State statutes requiring judgments to be recorded in the county in which the land lies have no effect upon a lien of a judgment of the United States Courts. This has been expressly decided in 1 Abb., U. S.,. 474.
It is claimed by the counsel for the defendant below that he took possession of the land in controversy in the year 1860, and in the lifetime of James Weeks. That Weeks died in the year 1865. This suit was instituted “ in the-
This court in the case of McBride vs. Spencer, 14 Fla., 403, and in this same case when here at the January term of 1880, has construed the statute of limitations, together with sec. 19 of the act of 1872, in language which it would seem almost impossible to misunderstand, and that construction is the law of this case. If the claim of defendant •below (we express no opinion on the evidence, as the case must be tried again,) that he took adverse possession of the land in 1860 is true, then by the operation of sec. 19 of the act of 1872 the representatives of Weeks could bring the action within six months from the 27th of February, 1872, ,-and if they failed to bring it within said time it was barred by said act.
The record shows that a suit was commenced by Stephen Weeks, as administrator of James Weeks, deceased, against the defendant for the land in controversy on the 27th day of April, 1874, which suit was discontinued on the 29th of May, 1878. The present suit was instituted by the heirs of Weeks in September following. The court further charged the jury that in calculating the period of adverse holding by the defendant they should consider the commencement of this suit as dating from the 27th day of April, 1874. This charge was erroneous. Counsel for appellees cite in support of it the following act, McClellan’s Dig., p. 734, sec. 21: “ If in any action or suit judgment be given for the plaintiff, and the same be afterwards reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment the judgment be given against the plaintiff, that he take nothing by his
The court also charged the jury that if they found from the evidence that any of the plaintiffs were married women or under the age of 28 years, April 27th, 1874, the date of the commencement of the suit against such plaintiffs, there can be no adverse possession no matter how long the property may have been held against them if you do not believe that this statute begau to run against Weeks in his lifetime. Fixing the age at 28 yea'rs-we suppose was intended to allow 7 years after coming of age. This charge was also erroneous, for the reasons given above, to-wit: fixing the time when the statute began to run from the 27th of April, 1874. If it be true as defendant below claims that he took adverse possession of the land in 1860, in the lifetime of the ancestor of plaintiffs, and through whom they claim, the statute begun to run from that date against their ancestor and no subsequent disabilities of the plaintiff's, nonage or coverture, could check or impede it. This question also was decided by the court in this case at the January term, 1880, and is also the km of this ease.
The court also instructed the jury that if Askew or Brock, or either, had actual or constructive notice that Jernigan had sold the property to James Weeks prior to the
If the plaintiff iu the judgment when it was rendered had notice of the deed from Jernigan to Weeks, then no lien by virtue of such judgment attached to the land.
The.rule is established in this State that a judgment is a lieu on real estate which has been conveyed by deed by the defendant in execution prior to the rendition of the judgment, but which was not recorded and of which the judgment creditor did not have actual notice at the time of entering such judgment. If the judgment creditor had no notice of the deed, either actual or constructive, his lien was complete and a purchaser at a sale thereunder would take such title as the records showed to be in the defendant in the judgment without regard to whether the purchaser had notice of it or not. If the creditor had fixed a lien on the real estate its validity could not be impaired by depriving any person of the right to purchase at a sale under it. A purchaser with notice from a purchaser without notice takes a good title. See Carr vs. Thomas, 18 Fla., 736; Eldridge, Dunham & Co. vs. Post, 20 Fla., 597 ; see also Devendell vs. Hamilton, 27 Ala., 155 ; Jordan vs. Mead, 12 Ala., 247 ; Daniels vs. Sorrels, 9 Ala., 436.
Defendant asked the court to instruct the jury that the “ plaintiff’ must prove the location of the premises and that the laud of which their ancestor was seised are the identical lands described iu the declaration.” This was a correct statement of the law and should have been given.
Defendant also asked the court to instruct'the jury “if
The Judge charged the jury that there must be no moment of time when such possession is broken up or discontinued. It would be difficult, if not impossible, to prescribe in advance what lapse of possession by the occupant would destroy its continuity. A voluntary and intentional abandonment of the premises without intention of returning or retaking possession, no matter for how short a time, would be such a breach of continuity of possession as would render inoperative the defense of adverse possession. As to what is a continued occupancy and possessi m, must in a
In the course of the trial the defendant offered evidence to show that the title to the property in suit was in a third party, to wit: Wm. Travers. The plaintiff objected on the ground that the defendant and plaintiff deraigned their title from a common source, to wit: from one Aaron Jernigan. We think this objection a good one. If it be true, and as we have said we express no opinion on the evidence, that, plaintiffs claim title through a deed to their common ancestor, James Weeks, from Aaron Jernigan, and the defendant claims title through a purchaser at a sale of the property under a judgment against said Jernigan, they claim title from a common source. Without passing upon the question as to the right of a defendant in an ejectment suit to set up an outstanding title with which he does not connect himself, we think it clear that where both parties claim title to land from a common source that the defendant is estopped from setting up an outstanding title with •which he is disconnected. 3 Wait’s Actions and Defences, ;pp. 17 and 18; Union Bank vs. Manard, 51 Mo., 548. When both parties claim under a common source of title •they mutually admit the title in the person from whom they claim to be good and neither of them need go further back than such title. 52 Penn., 492 ; Gantt vs. Cowan, 27 Ala., 582 ; Pollard vs. Cocke, 19 Ala., 188.
We do not think it necessary to express an opinion on the question as to the admissibility of a certified copy of
The judgment is reversed and the cause remanded.