22 Fla. 491 | Fla. | 1886
The Chief Justice delivered the opinion of the court:
M. A. Brownlie, Florence M. J. Groover and J. A. Groover, her husband, brought suit in the Circuit Court of Volusia county against Annie D. Lungren for the recovery of a tract of land lying in said county containing forty acres. The defendant pleaded not guilty. The plaintiffs introduced in evidence a patent to the land from the United States to Mitchel A. Brownlie, dated May 1st, 1855 ; also evidence to prove that said Mitchell A. Brownlie died in the year 1858 or 1859, and that the plaintiffs, M. A. Brownlie and Florence M. J. Groover, were his heirs at law. Suit was instituted December 10, 1888. The evidence in the case showed that one Martin, in the year 1882 or 1853, cleared ten or twelve acres in one corner of the forty acre tract and fenced
The jury returned a verdict as follows: “ "We, the jury, find the defendant guilty of holding unlawfully the lands described in the declaration, to wit: the SW ¼ of NW ¼ of sec. 26, T. 15, south of R. 28, east, containing 39 56-100 acres, and that the plaintiffs are entitled to the recovery of the same.”
This verdict cannot be sustained and the court erred in ■rendering a judgment thereon. It does not state the quantity of the estate of the plaintiffs in the land.
The Judge presiding did not charge the jury upon the whole law of the case, as he should have done. He omitted to charge the jury as to the legal effect the enclosure of the ten or twelve acres, taken in connection with the written instrument testified to by Price, had, under the 4th clause of sec. 6, p. 732, Mc’s. Dig., upon the part of the land not enclosed, nor did the counsel for the appellant, after the failure of the Judge to so charge, request any instruction to
The bill of exceptions does not disclose what connection or relation the defendant, Annie D. Lungren, sustained to the Henry D. Lungren, described in the deed as the grantee-of Martin. Counsel for appellant says in his brief that she, is his executrix.
The record shows nothing on the subject.
Judgment reversed and new trial granted.