28 Fla. 763 | Fla. | 1891
The defendants objected before the master who took the testimony, to the competency of Eli Haworth and his wife, two of the complainants, as witnesses in support of the case made by the bill, on the ground of their marital relation, and the circuit judge sustained the objections and excluded their evidence. The correctness of this ruling is assailed by counsel for appellants.
The statutes in force at the time of the ruling complained of, are those of February 4th, 1874, and March 7th, 1879, and January 29th, 1885. The first of these (sec. 24, p. 518 McClellan’s Digest), provides that no person offered as a witness in any court or before any officer acting judicially, shall be excluded by reason of his' interest in the event of the action of proceeding, or because he is a party thereto. There is a proviso, but it need not be noticed as the case before us does not fall within any exception made by it to the general
In McGill vs. McGill, 19 Fla., 341, a divorce case decided in 1882, it was held that the common law exclusion of a husband or wife as witnesses to affect the rights or interests of the other was not solely on grounds of property interest, but on ground of public' policy for the protection of the marriage relation, and that the statutes then in forcq, those'of 1874 and 1879 supra, did not change the common law excluding husband and wife from testifying in a suit for divorce. It is, however, observed in the opinion, and in our opinion correctly, that these statutes innovate upon the rule of the common law, to the extent that interest in the event of an action, or merely being a party, shall no longer exclude a witness from testifying, and that in civil actions married women are not excluded in cases where their husbands are competent witnesses.
The true principles of the common law as disqualifying either a husband or wife as a witness where the other is a party to or interested in the event of the suit, is not the interest of the one offered as a witness in the event of the suit,- but is public policy founded on the preservation and peace of the marriage relation; Hasbrouck vs. Vandervoort, 9 N. Y., (5 Selden), 153; Lucas vs. Brooks, 18 Wall., 436; Wharton’s Law of Evidence, sec. 430; and hence the removal of the disqualification of interest or of being a party to a suit does not affect the disqualification of husband or
Our law-making power had seen fit to provide by the act of 1874 that neither interest in the result, nor being a party to the suit should, in cases not within its proviso, disqualify any person as a witness, and hence, if a husband was a party fie was not disqualified from testifying as to his own interest, even though his wife were a party, but he could not testify as to her interest if she was a party or interested in the result, and likewise, under this act, if a wife was a party or interested in the result she could testify as to her own interest, (Williams vs. J. T. & K. W. R. Co., 26 Fla., -, 8 South. Rep., 446,) but it did not extend to her any competency in excess of that given to a husband. The act of 1879, however, did extend to her additional competency; it says that wherever the husbanc'l is a party and allowed to testify the wife shall not be excluded as a witness. The purpose of this act wras to 'remove the common law disability as wife which at the time of its enactment remained unaffected by prior legislation; so wherever the husband was a party to a suit, and its character was such that his interest therein or connection with the suit would, under the act of 1874, not disqualify him from testifying as to his interest, his wife ceased, by virtue of the act of 1879, to be disqualified as wife, or on grounds of public policy, from testifying as to his interests. Of course where the character of the case was one falling within the exceptions named in the
Proceeding to apply these principles, we see that the case before us is one in which the husband, Eli T. Haworth, has upon the face of the hill, no interest in the • land in controversy. In 1875 he, according to the bill, cc)nvejred to his son Alphonso his entire interest therein, and as between himself and his son the deed by his wife and himself of October 27th, 1877, to Miss Livingston was of no effect as a conveyance, although as to Miss Livingston, if she took it without notice of the deed to Alphonso, and as to Mrs. Norris, if either she or Miss Livingston took without such noticie, it was valid and effectual. The only effect of this deed, judging from the contention of complainants’ bill is, that it would constitute a relinquishment of the dower of Mrs. Haworth and that with it the con templated deed from Alphonso, conveying the legal title would, when made, vest a perfect title in Miss
II. We will now consider the case in so far as it may be regarded as affecting any rights of Mr. and Mrs. Haworth.
The deed of October 27th, 1877, from Eli Haworth and wife to Miss Livingston is one by the terms of
This deed is signed and sealed by Mr. and Mrs. Ha-
It may be remarked that the evidence does not establish the assertion of the bill that Miss Livingston was aware at the time she obtained the deed, or when she is alleged to have agreed to pay the five hundred dollars for the purposes. charged, that she could not get the money from her father. The testimony falls short of proving that she made any fraudulent representations with a view to obtaining’ possession of the deed, or that the possession of it was obtained through fraud, accident or mistake, or contrary to the intention of the parties. Towner vs. Lucas, 13 Grattan, 705.
It is sought to prove by parol evidence that Miss Livingston promised to return this deed if the funds were not procured by her from her father and paid to Mr. and Mrs. Haworth, and that such was the understanding and agreement undei which the deed was delivered to and received by her, and also that the deed was not intended as an absolute conveyance of the property, but only given to her in order that she might show it to her father, and thereby induce bfm to let her have the money. The introduction of parol evidence for such purpose was objected to. Independent of any question of the competency of witnesses we are satisfied that parol testimony is inadmissible for the
Parol evidence not being admissible to show that the delivery of the deed to Miss Livingston was conditional, Mr. and Mrs. Haworth are for' this reason, and that indicated in the third paragraph of this subdivision of the opinion, not entitled to any relief on this record.
III. In view of the character of the case sought to
The bill alleges that none of the defendants have ever had possession or control of the land, but that Alplionso was in possession of it at the time the deed was made to Miss Livingston, and has ever since been and is now in possession of it; that defendants, Norris and wife, are going upon and trespassing on the land and cutting the wood and timber from the same, and attempting to carry therefrom such wood and timber; and still continues to do so, though warned not to. The answer of Mrs. Reed and her husband is, upon this point, that they supposed they were in possession of the land, the said Emma down to the time of her marriage, May 4th, 1880, and they to the date of their deed to Mrs. Norris. Norris and wife deny each and every allegation of the bill as to the possession of the land by Alplionso since the execution of the deed to Miss Livingston, and aver that at the time of the execution of the deed to Mrs. Norris, which was April 11th, 1885, Mr. and Mrs. Reed were in possession of the land, and that thereupon Mrs. Norris and her husband in her right took possession of it and had it surveyed, and that one of the stakes of the survey is still standing, and that on or about the first day of September, 1885, they had an employee to go on the land for the purpose of clearing the same for cultiva»
The testimony as to possession was taken between July 12th, and August 15th, 1886, and is as follows : Eli Haworth, who lived aboiit three miles from the land, on the San Pablo plantation, says that his son, and himself for him, were at the time of the execution of the deed to Miss Livingston, and have always up to the time of testifying, been, and were then in possession, paying taxes upon it and exercising all rights of possession. That Miss Livingston never took possession in any way. That nothing has ever been done on the land except what “we” have done; that his son was working on the laud and has been ever since occasionally. Edward Roundtree, a witness for complainants, who lives about seven miles south of Mayport (the land being about one mile north or northeast of Mayport) says that he knew Eli Haworth was in possession*of the land; that Norris had a man on it clearing it up about October, 1885, and wanted wit
The answer of Norris and wife is responsive to the bill upon the point in question, and its statements are controlling evidence as to their possession, in the absence of sufficient testimony to overcome them. These-statements show that they were in physical possession when the bill was filed; giving the acts constituting-such possession, and not a mere general averment of possession. Roundtree’s testimony tends to confirm
The material allegations of. the bill as to 2)ossession are not sustained by the record.
In view of the above conclusion as to 2>ossession, it follows, since the claim or title of Al2>honso to the land is legal in its character, that he has a sufficient remedy at law in an action of ejectment, and cannot successfully invoke the equitable jurisdiction for removal of cloud from title to land. Sloan vs. Sloan, 25 Fla., 53; Byrne vs. Hinds, 16 Minn., 521. If Alphonso is entitled to an injunction against tres2>ass, pending an action at law, he can ajjjdy for it. Erhardt
The decree dismissing the bill is affirmed.