59 Fla. 332 | Fla. | 1910
This writ of error is to a judgment for the plaintiffs in an action of ejectment begun June 21, 1906. Trial was had upon a plea of not guilty, and the defendant undertook to show title by adverse possession under color of title. It was admitted that P. P. Johnson, the ancestor of the plaintiffs below had title to and possession of the property in controversy at his death in September, 1893. Seth Johnson testified that he tools out letters of administration in Alabama on P. P. Johnson’s estate, that he had possession of the lands since his father’s death and rented them out; that “I have not been in possession of the land since February, 1898, until I was put in possession by writ of possession in the year 1908. I have never paid any taxes on it since 1897. I did not pay the taxes on it because there was a suit pending in the Supreme Court.”
The plaintiff having rested, the defendant put in eAddence the petition in the restitution proceeding. The separate answer of D. L. McKinnon to the petition was then offered in evidence by the defendant and it was objected to by the plaintiffs and the objection sustained. A demurrer to the answer and the ruling thereon were likewise excluded by the court.
The answer, demurrer thereto and the ruling thereon are not an estoppel as an election of remedies by the plaintiffs. They do not show res adjudicata of the subject-matter and they do not tend to shoAV adverse possession
Where a party elects to adopt one of several inconsistent remedies he cannot afterwards pursue the others or either of them even though he fails in the remedy elected and used. But where a party has several consistent remedies the mere adoption and use of one will not of itself preclude the use of the others under appropriate circumstances. Where the election of a remedy assumes the existence of a particular status or relation of the party to the subject-matter of litigation, the party cannot after-wards pursue another remedy by which he assumes a different and inconsistent status or relation to the subject-matter. In restitution proceedings the relation or ownership of the property is assumed, though the question of title is not litigated. In ejectment the relation of ownership is likewise assumed and the title is a subject of controversy. Restitution proceedings and ejectment are not inconsistent or coextensive proceedings, but they are consistent and cumulative remedies. American Process Company v. Florida White Pressed Brick Company, 56 Fla. 116, 47 South. Rep. 942.
A test of the identity of causes of action, for the purpose of determining the question of res adjudicata, is the identity of the facts essential to the maintenance of the actions. It is of the essence of estoppel by judgment that it be made certain that the precise facts were determined by the former judgment. Prall v. Prall, 58 Fla. 496, 50 South. Rep. 867.
The facts necessary to be established in an action of ejectment are essentially different from those necessary in proceedings of restitution. Besides in this case the title and prior possession of plaintiff’s ancestor are expressly admitted. Conceding that the ruling on the demurrer excluded'by the trial" court is a final judgment,
The defendant then put in evidence the deficiency decree in the case of A. D. McKinnon v. Seth Johnson et al., and also as color of title the sheriff’s deed dated February 9, 1898, conveying to defendant the land by virtue of an execution issued under the decree. As a witness the defendant testified that the sheriff’s deed was executed to him, “and immediately, within two months, I went up there and over the land, and wherever there were any tenants on them, the tenants got off or accepted lease from me. As to the Linton place, Linton would not give it up and I brought an action of ejectment against him and obtained this judgment.” Witness exhibited a judgment dated June 9, 1899, in his favor for the Linton land and testified: “I went up there during the term of court, as soon as I got through with my cases, as I didn’t want the place to remain vacant more than I could help. That was in 1899. I had a renter on it the next year. * * He remained there one or two years. * * * I rented the place every year after I took charge of it up to the time that the houses were burned down, and it never was vacant more than a few days at a time, and I collected the rent every year except the year 1898, up to the time the house burned down two or three years ago, since the suit was brought; there were two buildings on the places; the fence around a considerable portion of the land burned and then I only rented the houses until they were burned. I don’t remember the names of all the renters. The Linton place is the W. -J and that portion of the E. of S. W. lying south of the Oampbellton and Chipley wagon-road, Sec. 34, Tp. 5, K, R. 13 W., containing 165 acres more or less.” I rented the Murphy place
“The wild lands I would go over and look after them, pay the taxes on them, and exercise the same acts of ownership I do over my other property I have. Neither the plaintiff nor any one else interfered with me while I was renting out these lands and going over them.” * * *
“There were houses on the Linton place, but I cannot say what part of the place they were on. Somewhere about the center, I would judge; some of it was fenced; there was about forty or fifty acres under cultivation, and there was a pear orchard on it. The year I got a judgment against Linton, it was cultivated by Linton. Linton claimed under Johnson. There wasn’t very much crop there; it was in June; he had a little potato patch, cane patch. I don’t know what it was, I did not find
“It never was vacant after I took charge of it, only when one tenant moved out and another moved in. They cultivated the place every year up to the time the fences were burned; they did not cease to cultivate it until the fence was burned; the fence was kept up by me all the time until it was burned, and would keep out stock. It was burned in 1905 or first part of 1906. I am not sure about that.” * * *
“I cannot tell the names of the renters I collected the rent from 1902, 3, 4, or 5. I don’t know the last one I collected rent from; it may have been Wilkerson.” * * * “All I did to the five acres in the Hagerman Addition to the Town of Chipley was to. ride and walk over it in looking after it. I went right over it, never improved it, no fence was erected on it; lands in Section 24 and 30 are wild. A part of the time I had a portion of the Murphy place turpentined, where it had been boxed before, but refused to allow any new boxes cut on any of the land, although I had frequent applications to do it. I claimed under the Sheriff’s deed. The Supreme Court afterwards declared it void. I claimed under the deed before and after it, the judgment of A. D. McKinnon against the plaintiffs, under which I purchased.' The suit in which my deed was declared void was plaintiffs against myself a year or two ago, and I had been holding the lands for more than seven years consecutively; up to that time I was holding under my deed as title.” * * * “After the Supreme Court decided my deeds void, which I think was in the early part of 1908; after that decision I only claimed it as color of title; I also claimed under a tax deed, ejectment judgment and adverse possession; the execution under which I purchased was my brother’s,
It was admitted that the ancestor of the plaintiffs below “was seized of said lands and that title and possession thereof were in him at the time of his death.” As the decree against the heirs of the decedent was reversed, and the sale to the defendant below was declared to be void, the title remains in the heirs of the decedent and the right to possession followed the title until another acquires title by adverse possession or otherwise. The admission of the administrator that he had not been in possession of the lands for about ten years, does not affect the rights of the other plaintiffs and does not show continuous adverse possession by the defendant.
The defendant D. L. McKinnon under the plea of not guilty undertook to prove title by adverse possession under color of title for the statutory period of seven years. Where a title by adverse possession under color of title is asserted the statute requires “a continued occupation and possession of the premises” “under the claim of title exclusive of any other right” “for seven years;” and provides that “land shall be deemed to have been possessed and occupied * * * (1) where it has been
There is no such clear and positive proof of possession and occupation of any of the lands by the defendant for seven years' as to indicate that the jury erred in finding for the plaintiffs. The defendant does not give any data from which it can be inferred that he “possessed and occupied” any of the land in any of the ways contemplated by the statute, or in any way to show an actual, continuous possession or occupancy of any of the lands so as to give a title independent of the several methods of possession and occupancy expressly permitted by the statute.
The action was begun June 21, 1906, and the trial here reviewed was had June 19, 1909. The defendant testified that he “had been holding the lands for more than seven years consecutively;” but the facts testified to do not show the “holding” to have been any of the acts expressly allowed by the statute to be deemed a sufficient “possession of the premises.” Assuming that when the defendant went upon the lands known as the Murphry place and leased it, “within two months” after February 9, 1898, he then entered into possession of the premises within the meaning of the statute, the defendant does not show with any degree of certainty that he continued to so possess and occupy the lands for the full period of seven years
The same may be said of the lands known as-the Linton place except that the asserted possession began “during the term of court” after June 9, 1899, and this action was instituted June 21, 1906. As the only acts of possession shown of the wild lands and the town lots were that the defendant rode and walked over them in looking after them and paid taxes on them, the court did not err in directing a verdict for the plaintiffs as to them. Such acts of possession may be sufficient under a legal title, but they are inadequate to show the acquisition of title by adverse possession. Giving every possible probative force to the evidence in favor of the defendant does not show for him the acquisition of title by adverse possession under color of title in any of the ways permitted by the statute. This conclusion having been reached it is not necessary to consider other contentions made here, there being evidence in support of the finding as to mesne profits.
The judgment is affirmed.
Petition for rehearing in this case denied.