Little v. KendrickLittle v. Kendrick
Lead Opinion
Wе have for review a judgment for the defendant in ejectment.
Defendant claimed title to 147 acres of land by adverse possession without color of title. He went into possession as a tenant of the rightful owner and so remained until the owner’s dеath in 1926. Thereafter defendant maintained an inclosure about a portion (the amount and description is not identified) of the land. The heirs of the landlord are plaintiffs here.
*721 Defendant farmed portions of the land and cut wood and posts frоm the unfenced woodland. He maintained a barn with an inclosure about it; he suffered, without protest, plaintiffs removal of thе building occupied by the owner after his death. He never offered to pay rent to plaintiffs although none was demandеd. Neither did he make known to plaintiffs that he was no longer a tenant or that he was claiming to own the property until abоut a year before this suit when he began the erection of a dwelling house on the property whereupon the question of title arose.
Two questions are submitted. First, whether it was necessary for defendant to show compliance with Section 95.18, Florida Statutes of 1941, by returning the property for taxation. The lower court held the statute inapplicable to this case because whatever rights defendant had to the property were vested before the act became effective. In this ruling there was no error.
The second question relates to the sufficiency of the evidence regarding adverse possession to sustain a verdict. The law is that a tenant may become an adverse holder against his landlord without surrendering his possession yet in such case it is incumbent on the claimant to show his disavowal of the landlord’s title by clear, positive and unequivocal evidence. It is not enough for him to simply remain in possession and exercise all the rights of an apрarent owner, for the law presumes that once a man goes into possession as a tenant the relationship continues until the contrary is made to appear. 1 Am. Jur. page 807 et seq. One claiming title by adverse possession without cоlor of title can recover only that part actually occupied. If the portion actually occupiеd is not definitely described, no judgment can be entered on the claim. Okeechobee Co. v. Norton, et al.,
Testing the defendant’s claim by this law it is apparent he must fail. His evidence is insufficient to sustain his claim. Furthermore, he admits that a portion of thе property was not inclosed, neither was the uninclosed portion usually cultivated of improved. Therefore he failed to meet the requirements of Section 95.17, Florida Statutes, 1941. The part *722 actually inclosed is not sufficiently described to sustain a judgment even if the evidence were sufficient to prove an adverse holding.
The judgment is reversed.
Concurrence Opinion
concurring specially:
On June 17, 1889, the Federal Government patented to Charles H. Little one hundred and forty-seven acres of land located in Marion County, Florida. The patentee built a home, cleared a considerable portion of the tract, where he resided for years and raised severаl children. The children, except one, left the community in which the homestead was situated prior to the patenteе’s death in 1926, which occurred at the home of his son about one mile from the homestead.
Charles H. LitPe conveyed onе acre of land, adjacent to but' of a different tract, to Ed Kendrick, who built a home thereon and moved his family but cultivatеd annually as a tenant of Charles H. Little a portion of the tract here involved. He continued to cultivate the land, or portions thereof after the death of Little. Shortly prior to the institution of the suit at bar, the defendant below undertook to build or construct a home on the described tract, when protests occurred terminating in the institution of the present suit.
The hеirs of Charles H. Little, in the course of the trial, introduced into evidence the aforesaid patent and established the heirs of Charles H. Little. The defendant below, under a plea of not guilty, introduced testimony to show that he had been in possession of the property for a period of seven years and under appropriate instructions by the trial court the jury rendered a verdict for the defendant below. A motion for a new trial raised the question of the legal sufficiency of the еvidence to sustain the verdict, which was denied and a judgment entered thereon for the defendant below.
I have diligently studied thе record and fail to find evidence to support the verdict. It was the legal duty of Ed. Kendrick, as the admitted tenant of Charles H. Little, by act
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or deed to disavow, disclaim and positively repudiate the relation of landlord and tenant under which he enjoyed the possession of said land which continued after the death of the owner. The law requires an act or deed made clear by positive disavowal and disclaimer of the relation of landlord and tenant, thereby placing the lаndlord or his heirs on notice that such relationship no longer existed, and when given, as stated
supra,
adverse possession recognized by the statutes begins. See Wilkins v. Pensacola City Co.,
Counsel for appellee points out that one of the heirs livеd in the community where the homestead was located and the possession of the defendant below was open, adverse, visible, hostile, and so notorious as to legally impute notice or knowledge of his right to an heir of Charles H. Little. It was the legal duty by act or deed on the part of defendant below by clear and positive action to disavow and reрudiate the relation of landlord and tenant under which he entered the possession of the property and bring this fact to the knowledge of the heirs before the statute of adverse possession begins to run against the heirs and this is not shown by the testimоny. It is my view that the motion for a new trial should have for this reason been sustained. I therefore agree to the conclusion "expressed in the opinion prepared by Mr. Justice Adams.