55 Fla. 256 | Fla. | 1908
Lead Opinion
—The plaintiff in error, hereinafter called the plaintiff, brought an action against the defendant in error, ‘hereinafter called the defendant, in the circuit court for Duval county, for 'the ’ conversion of certain spirits of turpentine and rosin, alleged to have been converted by the defendant, said property having been removed from certain described lands, which were situated in Baker county, Florida.
Three pleas were interposed by the defendant, not guilty, a denial of the title of the plaintiff to the property and the statute of limitations, upon which issue was joined and a trial had before a jury. We make no mention of the other pleadings in the way of motions, replications, rejoinders and demurrers for the reason that no point is made thereon, and it is. sufficient simply to indicate the issues upon which the case was tried. Certain evidence offered by the plaintiff was excluded upon objection of the defendant, as well as certain evidence
Five errors are assigned, all of which are based upon the rejection of certain evidence proffered by plaintiff and the exclusion of certain evidence previously admitted. No evidence was adduced by the defendant.
The first assignment is as follows: “The court erred in sustaining defendant’s objection to the question asked the witness, J. L. Williams', as to statements with reference to ownership of lands in question made by Carraway.”
We find that W. E. Carraway is the person who is specified by the plaintiff in the bill of particulars, furnished at the instance of the defendant, with having taken and removed the spirits of turpentine and rosin from the lands of the plaintiff for the conversion of which the plaintiff seeks to recover damages from the defendant. J. L. Williams was the first witness introduced on behalf of the plaintiff. After the witness had testified, among other things, that the said Carraway was in the possession of certain lands in 'Baker county in the years 1896, 1897 and 1898, which the witness designates as certain named islands, swamps and sloughs, presumably the lands from which the turpentine and rosin are alleged to have been removed, though the. testimony at that stage is not clear upon that point, boxing and turpentining the trees thereon, he was asked the following^ question by the plaintiff: “Mr. Williams, did you ever hear Mr. Carraway state anything in reference to the ownership of these lands ?” All that the bill of exceptions discloses is that the defendant objeoted to the question, which objection was sustained and an exception duly noted to the ruling. We
Strictly speaking, -the question as objected to was a preliminary one, as is admitted by both the plaintiff -and the defendant in their briefs, and did not necessarily call for illegal or inadmissible testimony, and so far that reason might not have been objectionable. However, no such point is made before us, the plaintiff contending that it was preliminary to- the asking of other questions “for the purpose of showing that Mir. Carraway while working on the lands in question admitted that he had no claim to their ownership.” -See Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 South. Rep. 318, and authorities there-cited. We -are confined to what is -disclosed by the record, iand, as it does not show the asking of any other questions o-r -any attempt to show by the witness any such admissions by Carraway, we are precluded from following the plaintiff in its discussion along this line. As we have already pointed -out, the grounds of objection to the question are not set out, -so it seems sufficient for us to say that even with the purpose which the plaintiff had in view, the question was certainly too broad, not being confined to any time -or place or restricted to any admissions which Carraway may have made while in possession of the lands -and engaged in turpentining 'them. In 'other words, the question so elaborately argued by the plaintiff is- not before us for determination, and it becomes unnecessary for us to go into an examination of the cited authorities. Suffice it to say that no error is made to> appear.
The second assignment is -as follows: “The court erred in refusing to admit in evidence certified copy of deed from George Westinghouse, Jr., and wife to John Paul, dated January 15th, 1895.”
The title of the plaintiff to the lands from which it
“ (1) That the paper purporting to^ be a copy of the deed does not describe any particular land, but refers to other conveyances for descriptions of such lands, and, unless such other conveyances are introduced in evidence, it is immaterial and irrelevant.
(2) That the original was not' executed in accordance with the law—in that the witnesses do' not purport to attest the signing, sealing and delivering of the deed: the attestation clause, as to the witnesses, is wholly insufficient—.the language being: Tn the presence of/- The original, therefore, has no subscribing witnesses within the meaning of the laws of Florida.
( 3 ) And, on the further ground, that it is immaterial and' irrelevant in this cause, because it is not connected with the original source of title to make a complete title upon which the plaintiff could recover.”
The plaintiff informs us in its brief that the court, as a matter of fact, sustained the second ground of the objection, but admits that it would be necessarjr for it to show that hone of the objections were well founded.
As to the first ground of objection, we find that no lands are specifically described in the deed in question, the description therein being as follows: “all their right, title and interest in and to all those certain lands situated, lying and being in the counties of Columbia, Nassau, Duval, Baker and Bradford, in the state of Florida, and described in a certain mortgage dated the 13th day of July, 1891, made by James L. Gates and Kittie Ml Gates, his wife, to Albert L. Brown and William J. Riley, and
This ground, which we have copied in full above, was based upon the attestation clause as to the witnesses. Upon referring to the copy of the deed in the transcript, we find the following:
“In witness whereof, the said parties of the first part have hereunto set their hands and seals the day and year first above written.
Margaret Eirskine W. Westinghouse l. s.
Geo. Westinghouse, Jr. l.s.
In presence of:
Paul D. C-raveth. <
L. C. Carv-anna.
As to Geo-. Westinghouse Victor K. McElhaney.
Gilman M. Tague.
As to Margaret Erskine W. Westinghouse.”
No attack was made on the acknowledgment of the deed by either of the grantors, which deed had been recorded in -the public record of Baker county. It was contended by the defendant “that the witnesses do not purport to attest the signing, sealing and delivering of the deed,” therefore, it has no subscribing witnesses as required by the laws of Florida. Is this conclusion well founded? In Smith v. Philips and Evans, 51 Fla. 327. 41 South. Rep. 527, in speaking of the form prescribed by statute for the execution of fax deeds, we held that “substantial compliance only is required by statute,” and that “done in the presence of,” instead of the statutory words, “signed and sealed in presence of,” followed by
The third ground of objection, as is said by the defendant in its brief, “was that this deed was not connected with the chain of title.” No extended discussion of this ground is necessary, as we have already practically disposed of it in our consideration of the second ground. At best, this ground of objection was only conditional.
It follows that this error is well assigned and that the court erred in refusing to admit the copy of the deed in evidence as against the grounds of objection urged.
We now come to the third assignment, which is as follows: “The court erred in refusing to admit in evidence certified copy of deed from trustees of the Internal Improvement Fund to the Florida Southern Railway Company, dated the 13th day of May, 1885.”
To the introduction of this instrument in evidence the defendant interposed the following grounds of objection :
“ (1) That the deed is immaterial and irrelevant, not being connected with the original source of title on the one hand, nor connected with the parties in this suit on the other:
(2) The deed has no witnesses, and does not purport to have the official seal of the office of the commissioner of lands and immigration, being the official seal of the public land office of this state, and, therefore, the signatures must be attached hy the witnesses:
*267 (3) That the said deed was never acknowledged for record, nor does it appear to have attached, or that the original 'had thereon, an impression of the seal of the commissioner of lands and immigration, being the seal of the public land office^ of the state, as required by law, to authorize its record :
(4) The certificate of the clerk of the court shows that it is not a true and correct copy of the entire deed, but it purports to certify as to such copy, except as to certain lands omitted therefrom, and there is no authority of law for such a certificate:
(5) That it doesn’t appear from the said copy when the original was recorded.”
The fourth assignment is as follows-: “The court erred in refusing to admit in evidence certified copy of a deed from the trustees of the Internal Improvement Fund to the Florida Southern Railway Company, dated the 21st day of May, 1883.” ^
To the introduction of this instrument in evidence the defendant interposed the following grounds of objection:
“ ( x ) That the said deed is immaterial and irrelevant, not being connected with the original source of title on the one hand, nor connected with the parties to ’this suit on the other;
(2) The defendants object to its introduction on the ground that the original was never acknowledged for record and is not entitled to record;
(3) That 'the said copy doesn’t show that the original had thereon the impression of the official seal of the commissioner of lands and immigration;
(4) That the attestation of the witnesses is insufficient ;
(5) and, That the certificate of the clerk of the court shows that it is not a true and correct copy of the entire*268 deed, but purports to certify as to such copy, except as to certain lands omitted therefrom, and there is no authortiy of law for such a certificate.” .
We shall take up these grounds of objection in their order. As to the first contention that these deeds were “immaterial and irrelevant, not being connected with the original source of title on tire one hand, nor connected with the parties to this suit on the other,” it is sufficient to say that this might be well founded- if the court had correctly excluded the Westinghouse deed, but, as we have already seen in discussing the second assignment, the court erred in so doing. With the Westinghouse deed admitted in evidence, these deeds would have been directly connected with the plaintiff’s chain of title and constituted essential links therein,, and, as such deeds were from the trustees of the Internal Improvement Fund, they constituted prima facie evidence of title in the grantee. See Grover v. Coffee, 19 Fla. 61. This ground -of objection is not tenable.
The grounds of objection that the certified copies of the respective deeds have no witnesses, or that the attestation of the witnesses thereto is insufficient, 'that they were never acknowledged for record and therefore not entitled t-o record, and that they fail to show that the originals had thereon the impression of the official seal of the commissioner of lands and immigration, may be disposed of without any extended discussion. We find that the testificandum clause- of each deed is as follows: “In testimony whereof, the said trustees have hereunto subscribed their names and affixed their -seals and have caused the seal of the Florida state land office to l?e hereunto affixed at the capítol,” etc. In the deed under date of the 13th dayj of May, .1885, a scrawl or seal appears after the name of each one of the trustees signing it, except that of the commissioner of
We now come to the remaining ground of objection of which the defendant says in its brief that “the most important objection to these so-called certified copies of
STATE OF FLORIDA,
COUNTY OF BAKER.
I, T. C. Carroll, clerk of the circuit court in and for the aforesaid county and state, do hereby certify that the above pages numbered from. I to 4, inclusive, contain a true and correct copy of the original deed as the same appears of record in deed book ‘C’ at page 214, one of the records of my office, except as to the description of certain lands omitted therefrom, the same being a true and correct copy of the original in so far as the same relate to the lands therein described.
In witness whereof, I have hereunto set my hand and affixed the seal of our said court, this 17th day of November, A. D. 1906.
(Seal Circuit Court) T. C. Carroll,
(Baker County, Florida) Clerk of the Circut Court in and for Baker County, Florida.”
It is contended that copies of the entire deeds should have been offered and that the certificate of the clerk should have been to each instrument as an entirety.
On an examination of such copies, we find that each contains a description of certain lands from which the property alleged toi have been converted was alleged to have been taken. « After the description in the first deed, the words, “other descriptions contained herein omitted,” appear in parentheses, then comes the following, “containing in the aggregate fifty thousand nine hundred and fifty-three acres and forty-five hundredths of an acre, lying and being in the county of Baker, in the state of
The question we are called upon to answer -is, did the fact of the omission of certain other lands described in said deeds from the certified copies thereof, as shown by the clerk’s certificates, render such copies inadmissible in evidence as against the ground of objection urged?
We are not advised upon what ground of objection the trial court rejected the proffered deeds, as the record simply shows that “the said judge did then and there decide that the said objections should be sustained and refused to admit the said paper in evidence.” Before rejecting these deeds, the trial court had rejected the Westinghouse deed, constituting an indispensable link in the plaintiff’s title, in effect throwing it out of court, as we have already seen and found that the court erred in so doing.
The other grounds of objection to the introduction in evidence of the deeds in question were strenuously insisted upon here and presumably were likewise insisted upon in the trial court. Such other grounds apply with equal force to a complete copy, and which if properly sustained would reject a perfect copy of the entire deed, which grounds of objection could not be overcome by better evidence. It is true that we have examined and held untenable such other grounds of objection, and it may well be, as the defendant contends, that this is the most important ground of objection urged, but, as we have said, we cannot tell upon what particular ground or grounds the ruling of the trial court was based. In view of the fact that it would have required the 'expenditure of only 'a few dollars by the plaintiff to have procured and offered perfect copies of such deeds, we feel justified in assuming that the deeds were rejected upon some of the other grounds urged, rather than upon this ground
We now come to the fifth and last assignment, which is as follows: “The court erred in granting defendant’s motion to exclude from evidence deeds already filed in evidence as follows: From John Paul and wife to the Bast Coast Lumber Company, from Henry C. Goodell to George Wes'tinghouse, Jr., and from Florida Southern Railway Company to James L. Gates.”
This motion was based upon the ground that such deeds were immaterial and irrelevant, because not “connected with any original source of title or any other
If the court had not previously excluded the Westinghouse deed, which we found in discussing the second assignment was erroneously done, there would have been no sufficient basis for this motion, hence it follows that this assignment must be sustained also.
No comment from us as to the sufficiency of the evidence to establish the plaintiff’s case would be proper. It is obvious that the erroneous rulings of the court in excluding evidence offered by the plaintiff -to establish its title caused such breaks in the plaintiff’s dhain as to prevent a recovery and to hender the introduction of further evidence as to- the alleged conversion nugatory.
It follows that the judgment must be reversed and a new trial awarded, and it is -so ordered.
Cockrell and Whitfield, JJ., concur;
Taylor and Hocker, JJ., concur in the opinion.
Dissenting Opinion
(dissenting.)—I do not concur in the conclusions reached by the chief justice upon the third and fourth assignments of error I do not think the court erred in refusing to admit in evidence certified copies of deeds from trustees of the Internal Improvement Fund to the Florida Railway Company, dated the 13th day of May, 1885, and the 21st day of May,. 1883. To the introduction of each of these deeds the defendant interposed 'the following objection: “The certificate of the clerk of the court shows that it is not a true and correct copy of the entire deed, but it purports to certify as to such copy, except as to certain lands omitted therefrom, and there is no authority of law for such a certificate.” To authorize the introduction of these so-called certified copies of
Section 1520 of the general statutes of 1906, provides that: “In all cases where any record, pleading, document, deed, conveyance, paper or instrument of writing is, or may be required or authorized to be made or filed or recorded in any public office of this state, or of any county thereof, a copy thereof duly certified under the hand and seal of office * * * to be a true and correct copy of the original on file or of record in his office, shall in all cases and in all courts and places be admitted and received in evidence with the like force and effect as the original thereof might be.”
The so-called certified copies offered in evidence here are not, and do not purport 'to be, certified copies of deeds, but they are certified copies of a portion of the deeds. The statute authorizes the introduction in evidence of “a copy”—a copy thereof duly certified *** to be a true and correct copy of the original.” To authorize the paper to be introduced in evidence it must be a copy, certified to be a true copy, a correct copy. The word copy means, not a reproduction of only a portion of the thing copied, but the whole of it. 2 Words and Phrases, 1595; 7 Am. & Eng. Ency. Law (2nd ed.) 507, note 1; Edmiston v. Schwartz, 13 Sert. & R. (Pa.) 135; Updergraff v. Perry, 4 Pa. St. 291.
The words true and correct transcript has been held to be equivalent to fuli and complete transcript. Butler v. Owen, 7 Ark. 369. See, also, 28 Am. & Eng. Ency. Law (2nd ed.) 741.
The certificate before us recites, “the same being a true and correct copy of the original in so* far as the same relate to the lands therein described.” In Bellamy v. Hawkins, 17 Fla. 750, text 757, this court said, “It is
I have italicized 'the words in the above quotation to call attention to the aptness of the language as applied to the so-called certificate before us. The certificate before us is not a copy of the entire record. It is a copy of a part of the record. The certificate that the paper is “a true and correct copy of the original in so far as the same relates to the lands therein described,” is not evidence of that fact, the court before whom- the trial was had being the proper judge of the materiality of the contents of the paper and of the bearing of each part upon every other part. The clerk of the court cannot determine the question by a certificate annexed to a partial copy.
To permit a certificate of a partial copy of a deed in evidence will permit a partial copy of “any record, pleading, document, conveyance, paper or instrument of writing” recorded in a public office of this state; for the statute we are now construing applies to all these writings.
In my opinion, this court has no' right to pass over this objection to 'the introduction of the proffered deeds,