*1 Error, Lowenstein, Viola Phillips, Albert Plaintiff by Benedict, her Husband Widow, Helen L. Joined Dowling, her Benedict, L. K. Martha Joined L. E. C. Dowling, Lowenstein, Albert Husband Gus Lowenstein, Brown, L. her Gertrude Joined Hus- A. E. band, Brown, and Max and Robert Lowenstein Lowenstein, Minors, Friend, their Next Viola in Error. Lowenstein, Defendants Division B. January 23,
Opinion Filed 1926. Rehearing March Petition for denied *2 Mcllvaine, for Error; Johnson & Plaintiff in George Bedell, Alexander & for Defend- Martin G. ants in Error. Lowenstein, widow, P. J.—Viola and oth- Whitfield, brought against Phillips ejectment
ers Albert an action of County the Circuit-Court for Duval to recover “Lots in6, 4 and Block 1 of H. Jane Trasher’s subdivision of quarter quarter of southwest south half of southwest plat per as 16, township <2, range 26 east south section county; page public Book of the records said point in the south at a beginning the land also described quarter quarter sec line of southwest said southwest range west Township South, east, tion 16 in feet running ‘forty,’ and said from the southeast corner of northerly feet, along thence westerly thence said line 157% *3 angles easterly right at feet, thence angles 415 right at beginning, of place southerly feet to 415 feet, 157% 'thence The less.” defendant land'more containing 1% acres of the title the put in issue guilty, plea which pleaded Sec. defendant. possession the lands, admitted and Buesing Petty 652; 3236, Stats.; Mays, 19 Fla. v. Rev. Gen. v. Shef Forbes, 495, 33 15 South. Walters Fla. Rep. 539. 513, 505, 75 text field, court. the tried cause was jury A was waived and property involved that stipulation “it is admitted By 1897, to 27th, November at all times between herein was separate property including 7th, 1898, the November and woman, of William Trasher, H. a married the wife of Jane a Feme Covert and not Trasher, R. and that was attorney Trasher, alleged in dealer, H. free and that Jennie Trasher, daughter.” for R. was his fact William duly property of in The muniments title to>the recorded controversy destroyed great were occurred in the fire which city Jacksonville, May of Florida, 3, 1901; in the provisions virtue of the Chapter 1901, of 4951 Acts of Secs. seq. et Statutes, 2729 Revised an General of abstract title ordinary made of prior course business to such de- struction, was used in the trial of the cause.
It appears by answers to interrogatories propounded statute, under the 2734, 2735, sections 3237, Revised Gen- Statutes, plaintiffs eral that through “(c) claim warranty
92 her William Trasher
deed from H. Trasher and Jane husband, by Trasher, attorney fact, to Jennie H. his Silcox, 7, 1898, Elizabeth dated and recorded November 16, 1898, 114, page conveying in Book November County situate, lying being in of Duval and land 1 of a Florida, of described as Lots 4 and Block State 16; in subdivision of S% of of section SW% SW% Range Township South, begin- 26 East. Also acres 1% ning 1965 feet west from SE corner of said S% of SW% said section township Range East; South -26 thence (one fifty-seven %) West feet hundred and thence 157% feet, feet, north 415 thence east 157% thence south 415 feet beginning. All South of Sec- % SW% SW% 16, township South, Range tion 26 East.
“(d) Power of attorney from William R. Trasher to Jennie H. Trasher, daughter, his dated 3, 1897, March re- 19th, corded March in book page giving power to make and receipts, execute releases, assignments, con- veyances, mortgages or deeds of trust, contracts for sale of *4 estate, real necessary and all acts for such prop- sales as to erty in Florida, by owned party,” first and the de- that “ through fendant (oo) claims Attorney Power of from William R. Trasher to Jennie H. daughter, Trasher his 3, dated 1897, March 19, recorded March in 1897, Book 107, page 70, giving power to make and receipts, execute releases, assignments, conveyances, mortgages or of deeds trust, contracts for sale of estate, necessary real and all acts for property such sales as to by in owned Florida first party;”
“ (P) Warranty deed from William R. Trasher Jen- attorney nie H. fact, Trasher his in and H. Trasher Mrs. J. Cohen, to Morris September dated 13th, 1899, and recorded September 18th, 1899, 119, page book 465, covering the south quarter half of the southwest quar- the southwest
93 2, south, east, township being 16, range 26 ter section. Park. 10, Benjamin lot in block 1, bounded on the south “ A. towife Morris Cohen (Q) Warranty deed from 22nd, April recorded 1921, 22nd, Phillips April dated half 461, covering the south page in deed book quarter of section of the southwest quarter of the southwest twenty containing south, range east, 2 26 16, township or acres more less.” and sub for defendant judgment
The rendered court taken was A of error writ granted a new trial. sequently 2905 Rev. Sec. statute. pursuant the defendant Co., 83 Fla. Stats.; v. Lurton-Hardaker McLendon Gen. Co., R. Georgia, v. S. & F. Rep. Ruff 64 67 Fla. South. South real and property, that “All provides
The constitution marriage, or law- by her before owned personal, of wife descent devise, bequest, by gift, fully acquired afterwards 1, Art. separate property.” Sec. .purchase or shall be her “Any married own- provides woman XI. The statute that may convey ing property sell, mortgage or it real married, might provided if not her husband do she were conveyance mortgage.” 3801 Rev. join in such sale or Sec. Gen. See also Sec. Rev. Gen. Stats. Stats. convincing conflicting Where the evidence is is not or or made, clearly preponderant finding favor applying principles ap- where no abuse or error in of law pears grar trial, ting appellate the order a new court generally will reverse the order court. Car- trial ney Stringfellow, Rep. 866; v. Chet- South. ney Roberts, Rep. 475; Dunnel- South. *5 Crystal Phosphate 131, lon Co. v. River Fla. Lumber Co. 63 Rep. 58 Refining South. 786: Gulf Howard, Co. v. 82 Fla. 27, 89 Rep. South. 349. principle
Where some settled of law is violated the 94 the law granting trial,
trial court in a or where new judg requires, made, a finding evidence the to be as finding on ment the be in and re would accord with law quirements justice of substantial cause, appellate the the court will reverse an order of granting the lower court presented. trial, appropriately new the matter -is when Bishop Taylor, 77, 287; v. 41 Philadel Rep. Fla. 25 South. Bigelow, v. phia America Underwriters’ Ins. Co. North 105, 210; Coggins, 48 Fla. 53 Fla. Rep. 37 South. v.Winn 327, Rep. 897; 279, 42 Feinberg Stearns, South. v. Fla. 56 v. Ham 797; Georgia 47 & F. R. Co. Rep. South. Southern 838; 150, Rep. Lathan Co., 63 Fla. 58 South. ilton Lumber 247, Ann. Thomas, Rep. 63 Fla. Cas. v. South. Belting Supply 1914A Cotton & Co. v. Florida State Co., Rep. 568; R. 67 South. Lum Fla. Jackson Bros. Yaeger ber Fla. 86 South. McCaskill, Co. v. & ejectment plaintiff In on an action of recover must strength of his own title and on the weakness plaintiff The the title the defendant. cannot recover against shows title even as one without unless he title prior possession. possession ejectment
To recover
of land in an action of
against
possession,
plaintiff
one
actual
should show
title in
right
possession,
himself and a
or that he had
been in
possession
actual bnoa
of the land and was
fide
ousted
the defendant.
Mfg.
Skinner
Wright,
Co. v.
Rep. 931;
High Springs Bank,
Bunch v.
47 South.
Rep. 121;
Cochran,
81 Fla.
89 South.
Clark 1.
Hartley
Rep. 250;
Ferrell,
95 Strup- 558; Levering Shockey, 100 Ind. Glidden v. it. v. 689, Bentley Goodwin, App. 26 400; Pa. v. Ind. ler, 52 St. E. 100, v. N. 44 S. Rep. 735; Ingram, E. 130 C. 60 N. Smith v. Bank of Belmar 984, 878; Nat. 61 A. First Rep. L. R. Shumard, Rep. N. Atl. 1001. —, J. 103 in matters a married woman
The acts and 'conduct
acts
competent
act, or
legally
is
where
where she
by law, may operate
estoppel
required
manner
an
402,
Watson,
as to
Warner v.
35 Fla.
17
páis
her. See
57,
Palmer,
Fla.
48 South.
Rep. 654;
v.
57
South.
Couch
Elliott,
318,
Rep.
59
995;
64 Fla.
Rep.
Johnson v.
South.
1348,
944;
estoppel
13 R.
388.
does
C. L.
Sec.
But
capacity
operate
give legal
competency to a married
or
woman,
dispense
requirements
or to
with
rela
of law
conveyance mortgage by
to the
tive
married woman
130
Hillman,
ve
her interests in real estate.
Threefoot
See
Rep.
244,
513;
Clark,
30
132 Ala.
Ala.
South.
Gibson v.
370,
Rep. 472;
Banks,
31
v.
101
South.
Bank of America
743;
240;
1326;
739,
10
v.
S.
R. C. L.
R. C. L.
U.
Vansandt
Weir,
104,
Rep.
109
19
is
Ala.
South.
The statute
mandatory,
conveyances
unless observed
mort
See
of married women are invalid.
gages
property
Equitable Building &
Stanley
Hamilton,
275;
v.
19 Fla.
181;
King,
Rep.
48
Loan Ass’n v.
Fla.
37 South.
Grocery Co.,
41
27
Walling v.
& Craft
Fla.
Christian
46;
Rep.
Stephenson,
Durham v.
41
25
South.
Rep. 284,
Lewis,
v.
A estoppel. Dennis, void deed cannot work an v. 445; 675, 739; Cyc. 4 Fla. R. L. 21 J. 1100; C. C. Darwin, 472; Harden v. 77 Ala. Louisville L. & T. St. Ry. Ky. Stephens, Co. v. 29 W. 14. In Rep. S. Elliott, Johnson
conveyance was made the name of the married woman *7 acquiesced husband, conveyance,
and her in such thereby. was held to be estopped It will necessary not be ambiguity to consider the the certainty, any, lack of if in description the land con- the tained in (p) interrog- the answer of the to the defendant propounded by atories the plaintiffs; nor to the consider effect of the relating statute to records, burned Section 2729 et Revised seq., General Statutes of 1920, upon ambi- guities in descriptions of land contained in abstracts of title made evidence the statutes. stipulated
It is plaintiff that both the and the defendant claim title from Jane H. Trasher, woman, a married who owned in the land controversy as separate property. her The defendant is admitted in possession to be if deed executed Mrs. Jane H. Trasher person and another acting for her husband was convey insufficient to title to plaintiffs’ predecessor interest, in plaintiffs then the have no upon title which to against recover as possession one in claiming title. It appear does-not plaintiffs that the had that, possession been in if be material here. power . The attorney is limited to the property of the purport husband and does not to authorize, if in it could authorize, law Jennie H. Trasher to act for her principal in joining aas proxy substitute or for the husband in con- veyances of separate his wife’s real estate.
The purported deed of conveyance, covering the wife’s separate estate, real in join which the husband did not imperatively is required by statute, inoperative to was transfer the title from Trasher, woman, Jane H. a married and the asserted plaintiffs title fails.
If it be true that the later executed to defendant’s deed predecessor in interest woman, the same in married which her deed husband join, did not covers the same real estate as that described the deed executed plaintiff’s predecessor, in interest, inoperative deed is also and'such convey the married separate woman’s title to her real estate, inoperative deed, though date, first prior does give plaintiffs a right against to recover in ejectment possession defendant claiming under the later in- operative authority deed. Under the of Wilkins v. Lewis. 82 South is not the married woman *8 estopped purporting convey separate her deed to her real estate in which plain- her did join. husband not The tiffs have themselves, right not shown title in or a to recover ejectment. an of mar- from the action The defendant under woman here not made a free dealer ried had been statute, in 61 not a and had obtained Leon, last etc., Day, divorce as in Ponce de decided at the term. with finding for the defendant was accordance
The a facts, grant it was error to applicable law to the and trial. new cause granting
The order a new trial is reversed and the is to enter remanded with directions to the Circuit Court motion in arrest defendant, unless a judgment for the final veredicto, shall judgment judgment for non obstante or prevail. made to Sec. Rev. Gen. be See Stats. Coggins,
Winn v. text
It is so ordered. J., Buford, J. concur.
Terrell and J., Strum, J., Opinion. in the C. concur Brown, and provision if Curiam. —Even of the burned rec- Per ords statute 2729 et seq., Section Revised General Statutes * * * powers that “all under sales shall be correct,” presumed regular to be was intended to a mar- given power a legally apply to apply and could him join for person to authorizing man another ried estate, noth- is separate real there conveyance of his wife’s attempted given be power ing a was to indicate that such not power of such is in this case. And the then a existence power (if attempted were though presumed be even regulat- under the statute be effectual shown and it would estate, real separate ing conveyances of married women’s statute) the cited being a under the she not free dealer presumed be provides powers under shall statute that sales regular "to and correct.” be records statutory provision that where stated The presumed conveyances burned, shall be that have been it conveyances powers "regular made under are such when correct,” modify exjmess requirement does convey may sell, married woman the statute under which estate, "her husband mortgage separate real -that or her join sale, conveyance mortgage,” Rev. in such Sec. *9 Gen. Stats. 1920. conveyance attempted a of the
If an and later earlier party parties different are property the same to same convey and each ineffectual to title because the essential mandatory requirements complied of a statute were with, any neither of the written instruments has advan- tage give over the other right a of action to recover the acquired possession who property from the one thereof attempted conveyance. the first ineffectual This is after deny estoppel grantor’s title; not a ease of the common is a an but it' case where the holder of purported ineffectual conveyance no right dispossess deed has of action to an- other possession who took similarly under later in- and purported effectual conveyance deed of of the property from the same owner.
Rehearing denied. J., J., P. J.
Whitfield, Buford, and Terrell concur.
Brown, C. J., J., J. concur in and Strum, Ellis Opinion.
H. L. Dawes and R. F. Error, Griggs, v. T. G. Plaintiffs in Error.
Robinson, Defendant Division B.
Opinion January 23, Filed *10 Error; Sparkman Knight, Attorneys for Plaintiffs in II. Chancey, Attorneys Edwin Cassels and E. B. L. for Defendant in Error.