25 So. 2d 498 | Fla. | 1946
In the year 1923 the Sarasota-Fruitville Drainage District was organized under the general drainage laws, now chapter
No further steps were taken by the district to acquire deeds to the property until November 27, 1943. In the meantime L.L. Richardson died, and his children, Mary Louise Richardson and Clara Leslie Richardson, thereafter continued holding possession of the property as heirs of their father. On November 27, 1943, and on May 11, 1944, respectively, the master who conducted the sale issued two separate *209 deeds conveying the property sold under the decree of foreclosure to the drainage district. No drainage taxes have been paid on the lands by Richardson or his heirs since 1927; neither have they paid state or county taxes thereon since 1929, and said taxes have been redeemed or paid by the district through the year 1944.
After the execution and delivery of the master's deeds to the drainage district the grantee made demand upon Mary Louise Richardson and Clara Leslie Richardson to deliver up possession of the land sold at the sale. Delivery of possession being refused, the district filed a petition for a writ of assistance to put the drainage district in possession of the property. For answer to the petition the respondents set up that subsequent to the time that title had become vested in the district by virtue of the confirmation of sale of January 27, 1933 they had acquired title to the property by reason of adverse possession. Testimony was taken on the issue and thereafter an order was entered by the chancellor denying the petition. An appeal has been taken from the order.
A writ of assistance is a form of process issuing out of chancery to transfer possession of land the title to and right to possession of which has been previously adjudicated. Hair v. Commercial Bank,
The claim asserted in the answer is wholly unsupported by proof. The most that can be said for the evidence offered by the respondents to support its claim of adverse possession is that it shows that after the confirmation of the sale of the property to the District, and prior to the issuance of the deeds by the master, the respondents and their father before them were allowed to remain in possession of the property for *210 a continuous period of more than seven years; and that during such period of time the District sent them annual notices of landowner meetings of the District. This, with nothing more, is certainly not sufficient to defeat the title of the District acquired through the foreclosure sale, on the ground of adverse possession.
Where land is sold at a judicial sale and the buyer allows the former owner to remain in possession after confirmation, the presumption is that the possession of the original owner is as quasi tenant or tenant at sufferance of the buyer, See 2 C.J. 163, Adberse Possession Sec. 298; 2 C.J.S. 659, Adverse Possession Sec. 105, and the legal principles governing the acquisition of an adverse title by a tenant as against his landlord are applicable to such situation. The law of this jurisdiction is that the possession of a tenant at sufferance may become adverse against the landlord without surrender of possession, only where there has been a clear, positive and unequivocal disclaimer of the landlord's title by the tenant, and an assertion of the new right claimed brought home to the landlord by clear and distinct notice. Wilkins v. Pensacola City Co.,
The respondents have failed to show proof of an antagonistic claim of ownership in derogation of the title acquired at the judicial sale, and notice of such adverse claim to the new owner. It is our view, therefore, that the petition for the writ of assistance should have been granted. The conclusion reached makes it unnecessary for us to consider the effect of our adverse possession statutes which require the *211 payment of state and county taxes by one claiming adverse possession to lands. See Section 95.19 Florida Statutes 1941.
The decree appealed from is reversed with directions that a writ of assistance he issued and that the new owner be put into possession of the lands involved.
It is so ordered.
CHAPMAN, C. J., BROWN and THOMAS, JJ., concur.