57 Fla. 444 | Fla. | 1909
Several assignments of error are based on the ruling of the Circuit Judge in either receiving or
T. H. Irwin testified in substance that he was agent for O’Brien -and examined lands in Taylor county in the same section (24) Tp. 2 R. 5, for him. The lands examined were the Covington, Aman and Girardeau lands and were adjoining; that he had a list and map prepared by Mr. W. F. Calhoun, Deputy Clerk of Taylor County, which was filed in evidence. Two forties (not cm bracing the land in dispute) were marked “D,” which indi
Judg'e W. H. Baker of Jacksonville testified in substance that he resided in Jacksonville and was an attorney at law; that he was O’Brien’s attorney and represented' him in the transaction of buying the lands in controversy from- Mr. W. M. Girardeauthat in the latter part of August, 1904, he went to- Perry (county seat of Taylor County), with T. PI. Irwin for the purpose of examining the titles in the purchase of ceptain lands in the neighborhood of the lands in question -belonging to M.
Mr. William. Girardeau testified at length. He stated he 'was the grantor in -both the deed to Marthinson and others, and the subsequent deed to O’Brien. As to the first deed he says that Mr. McCall came to see him, or wrote him first asking if the witness owned these lands in Taylor county and could sell them. He replied that he had never seen the lands but would sell them for full cash value; that he had not paid the taxes for several years and had virtually thrown them, away; that if Mr. McCall would straighten out the taxes and would make an offer of full cash value witness would sell; that McCall offered $5.00 per acre and witness accepted the offer; that McCall made out a deed which witness executed, but does not remember to whom the lands were conveyed, except as having seen the deed; that he subsequently sold and conveyed’ these lands through Judge Baker to O’Brien; that he thinks Irwin asked him in Monticello whether he owned these lands; that Irwin showed him a map of the numbers described; that he told Irwin he owned several thousand acres in Taylor county; that he would have to look the matter up' to see if these lands were his;-that he heard no, more of Irwin; that lie subsequently met Judge Baker in Monticello, who asked whether he owned the lands and would make a price on them; that he, Baker, had been to Perry and had investigated the books there and that witness was undoubtedly the owner of these lands; that he told Judge Baker he had sold some land in that section, and before making a price he wanted to investigate; that he told Baker he would quit claim the land and named a price; that Baker tolcí him the parties who were trying to buy the lands
This court in the case of West Coast Lumber Co. v. Griffin, 56 Fla. 878, 48 South. Rep. 36, has said: “It is yvell settled here that under our recording- laws subsequent purchasers acquiring- subsequent title without no
In the case of Hine v. Dodd, 2 Adk. 275, notice of an unregistered prior judgment was sought to be brought home to a subsequent registered mortgagee by proving conversations the mortgagee had had with several parties, calculated to give him' notice of the prior judgment. One witness, Sarah Hine, swore she heard a conversation between the mortgagee and the adverse party at a meeting held to- adjust all -matters of differences between them: “she,swears that the plaintiff then charged Dodd with notice of the judgment prior to- the execution of the mortgage and that Dodd answered it w-as true he knew of the judgment, but that he -knew at the same time it was not registered, and what were acts of Parliament for unless they were effectually observed. Lord Chancellor Hardwicke observes: “Undoubtedly this is a material evidence, but then it is only one witness against the answer of the defendant,” “it is evidence of a defendant’s-confession in contradiction of his answer, and -contraryTo a positive act of parliament made to prevent any temptation to perjury from contrarity of evidence.” He fur
In the case of Flagg v. Mann, 2 Sumner 486, text 551, Judge Story had occasion to refer and apply the principles of the case of Hiñe v. Dodd, supra. There notice of title was undertaken to be proven by conversations with several witnesses. Judge Story says: “Indeed most of the plaintiff’s witnesses on this point pretend no exactness as to times, and this leads me to some distrust of the memory of those who are more direct in their statements. In its very nature, such evidence as. to- times and' dates is open to much question unless it stands supported by particular fixed facts, to which it may with certainty be referred. Vague reports and rumors from' strangers are not a sufficient foundation on which to charge a purchaser with notice of a title in a third person'.” Judge Story also (p. 551) deals with the question of notoriety of ownership as notice, and says such evidence could not apply to a -party not a resident of the place where the purchase occurred.
In the case of Satterfield v. Malone, 1 L. R. A. 35, it is held that fraud is not established by circumstances merely calculated to- excite suspicion. That to- constitute notice of an unrecorded title or adverse claim', the information must come from some one interested in the estate or from some authoritative source, and that mere rumors are not notice, 1101" do they impose upon a purchaser the duty of. inquiry.
In the instant case notice to O’Brien of the prior .unrecorded deed of complainants is attempted to be shown in several ways. First, by the fact that a few acres of the land in dispute was enclosed in the field of Kemp, the
In view of our conclusion on the question of notice, it is unnecessary to consider the question of the election of remedies.
The decree is affirmed.