47 Fla. 212 | Fla. | 1904
— -The defendants in error sued the plaintiff in error in an action of ejectment to recover lot 3 except southeast 10 acres, sec. 29, township T5, range twenty-eight, containing sixty-five acres of land. On the trial the court directed the jury to find a verdict for the plaintiffs below, whereupon they rendered the following verdict: “We, the jury, find for the plaintiffs and that they are entitled to a fee simple estate to lot 3, except S. E. 10 acres, section twenty-nine, township fifteen, south, range twenty-nine east.” A judgment for the plaintiffs was rendered in the following words and figures: “Therefore it is considered, adjudged and decreed by the court that the fee simple title in and to lot 3, except S. E. 10 acres of section 29, township 15 south, range twenty-nine east, be and the same is hereby vested in the plaintiffs B. B. Minshew and W. V. Carter, and that they do have possession of said land and their costs, which are now here taxed at thirty-one and 75-100 dollars and that they do have execution therefor.” The plaintiff in error seeks a reversal of this judgment.
On the trial the plaintiffs, for the purpose of showing title to the land sued for, offered in evidence a tax deed executed January 6, 1898, on a sale made in 1893. The defendant objected to the introduction of this tax deed in evidence, among others, for the reason that it was . void because, as he offered to prove by a certified copy-of the tax-book which he introduced in evidence the land was
In the case of Ellis v. Clark, 39 Fla. 714, text 725, 23 South. Rep. 410, a motion was made to strike out a tax deed, after evidence of its nullity had been given, but this court held that the proper practice' was not a motion to strike the tax deed from the evidence, “but that the court should have been requested to charge the jury on the subject” — quoting Daniel v. Taylor, 33 Fla. 636, 15 South. Rep. 313. The tax law of 1893, chap. 4115, sec. 61, makes a tax deed "prima facie evidence of the regularity of the proceedings from the valuation of the land by the assessor to the date of the deed inclusive.” The defendant had a right to overcome this prima facie evidence by proof showing the deed to be void. .After the introduction of evidence tending to show the deed to be void he should have prepared a charge informing the jury what effect should be given by them to his rebutting testimony, and requested the judge to give it. This he did not do.
Among others it is assigned as error that the court erred in entering a judgment for land in a range different from the one set forth in the declaration. In the declaration the land is described as being in “range twenty-eight east.” The verdict is in the following form: “We, the jury, find for the plaintiffs, and that they are entitled to a fee simple estate to lot three, except S. E. 10 acres, sec. 29, township 15 south, range twenty-nine east.
In Hoodless v. Jernigan, 46 Fla. 213, 35 South. Rep. 656, we did not deem it necessary to pass on the question whether a verdict in the form there stated was radically defective, inasmuch as we thought the error in omitting the section was merely clerical and would not occur again, and that it was at least debatable whether the omission was not cured by the fact that the verdict found the plaintiff entitled
There are many other assignments of error, but the bill of exceptions is so defectively prepared we can not consider them. As to the proper manner of presenting to this court in a bill of exceptions the propriety of an affirmative charge, see the case of the Atlantic Coast Line Railway v. Calhoun, decided at this term.
For the reason above stated the judgment is reversed at the cost of the defendants in error.
Shackleford, Cockrell and Carter, JJ., concur.
Taylor, C. J., absent on account of sickness.
Whitfield, J., disqtialified, took no part in the decision of this case.
