75 Fla. 589 | Fla. | 1918
The plaintiff in error, McGuel Moralis, brought an action of ejectment in the Circuit Court for Lee County against Julia K, Matheson and her husband B. P. Matheson to recover an undivided one-third interest in a lot of land in the city of Fort Myers. The defendants pleaded not guilty. A jury was waived, the evidence was heal'd by the judge who found for the defendants and entered Judgment against the plaintiff.
The facts in the case appear to be that William Allen in 1879 acquired by patent from the United States Government a tract of land embracing the lot described in the declaration. That on March 22, 1883, Nancy Allen, widow of William Allen, W. A. Roberts and Eugenia, his wife, who was Eugenia Allen, and Emma Allen, daughters of William, conveyed to A. J. Allen and his wife Nancy A. Allen, and on June 20, 1887, W. A. Roberts and Eugenia his wife conveyed to Miguel Moralis by warranty deed. The deed of March 22, 1887 from Nancy Allen widow and others to A. J. Allen and wife contained a covenant of warranty and seems to have been duly executed and recorded. The same is true as to the deed of June 20, 1887 from W .A. Roberts and wife to Miguel Moralis.
On April 2, 1888, A. J. Allen and wife conveyed to
Now the plaintiff claims title under his father Miguel Moralis and the defendants under Lucinda Moralis.
Miguel Moralis died in 1894. At the time of his death he was living upon the land with his wife and three children, Augustina, Nellie and the plaintiff McGuel and one other, an infant unmarried; who died shortly after its father, without issue. In 1900 Lucinda Moralis died. At the time of her death she and the three children above named were living upon the place as their home. The plaintiff was born May 16, 1888. He was therefore six years of age when his father died, and twelve years old when his mother died. This action was begun oh September 23, 1915, and the defendants appeared November 1; 1915. The action was brought therefore within seven years after the plaintiff became twenty-one years of age.
If the title to the land was in Miguel Moralis at the time of his death the plaintiff inherited a one-fourth undivided interest subject to the , widow’s dower, and upon the death of the infant before its mother, who died
The defendants offered in evidence the deed from Eugenia Roberts and her husband to Lucinda Moralis dated April 3, 1888, which was about nine months after the same grantors had conveyed the same land by warranty deed to Miguel, husband of Lucinda, which deed had been recorded in Monroe County. The deed to Lucinda contained the following clause: “This deed is given in lieu of a similar deed made to Miguel Moralis June twentieth, 1887, and recorded on 8th July, 1887, in Book P. pages 108, 9 & 10 Monroe County records.” There was evidence to the effect that when Eugenia Roberts and her husband conveyed to Miguel they did not have title to the land, but acquiring it shortly afterward thought they should execute a new deed, and Miguel directed them to name his wife Lucinda as grantee.
But if title to the land passed. to Miguel under the warranty deed from Eugenia Roberts and her husband after they had acquired the title, their subsequent deed to Lucinda was not effective, because the place being the homestead and being owned by Miguel he could not convey it to his wife, therefore he could not by the method employed vest the title in her. See Byrd v. Byrd, 73 Fla. 322, 74 South. Rep. 313.
Now the title to the land became vested in Miguel under the warranty deed from Eugenia Roberts and her husband dated June 20th, 1887, although they did not actually acquire the title until sometime afterward.
It has long been settled that “where a grantor sets forth on the face of his conveyance by averment or recital that he is seized of a particular estate in the.
In King v. Gilson’s Administratrix, 32 Ill. 348, Mr. Justice Wanker, speaking for the court, said in substance that the after acquired title inures to the benefit of the grantee named in a warranty deed executed at a time when the grantor had no title and that it made no difference what the basis of the doctrine is the effect is in all respects the same. See McAdams v. Bailey, 169 Ind. 518, 82 N. E. Rep. 1057, 13 L. R. A. (N.S.) 1003; 8 R. C. L. Subject “Deeds.” Sec. 110. In discussing the question Chancellor Kent says: “The estoppel works an interest in the land. An ejectment is maintainable on a mere estoppel. If the conveyance be with general warranty not only the subsequent title acquired by the grantor will inure by estoppel to the benefit of the grantee, but a subsequent purchaser from the grantor under his after-acquired title is equally estopped and the estoppel runs with the land.” 4 Kent’s Com. 98.
It seems to us to be no answer that the second deed was made to Miguel’s wife at his suggestion and with
In this view of the case the deed from Eugenia Roberts and her husband tó Lucinda Moralis conveyed no title, AH the proceedings of the County Judge’s Court in the matter of the estate of Lucinda Nicholson assuming her to have been the widow Moralis, were therefore irrelevant because such proceedings in no wise affected the title to the land held- by Miguel at his death which under the law of descent became vested in his children subject to the widow’s dower.
The defendant claims title under a deed from her husband who claimed under a deed from a commissioner appointed by order of the County Judge to sell the land at private sale, upon the petition of the administrator of Lucinda Nicholson’s estate. The land was sold under the proceedings in the County Judge’s Court as the property of Lucinda Nicholson.
There is some evidence from which it may be inferred that Lucinda Nicholson was the widow of Miguel Moralis
The proceedings were probably taken under Section 2421 of the General Statutes of Florida, 1906, which provides that an administrator who has control or management of any real estate the property of an infant may sell the same under proper proceedings if he thinks it necessary or expedient to do so. But as administrator of the estate of Lucinda Nicholson he could not have control and management of the real estate of the plaintiff which he inherited from his father.
The defendant however relies upon Section 1724 of the General Statutes of Florida which is as follows: “The title of any purchaser or his assigns who shall have
Under the circumstances of the present case the statute has no application to it.
The judgment of the court below is therefore reversed.