81 Fla. 438 | Fla. | 1921
This action is ejectment. It was brought on August 26, 1916. The declaration is in the statutory form. The plea is not guilty. By agreement the cause was submitted to and tried by the court without a jury. The finding and judgment were for defendants. Writ of error was taken to review the judgment.
To prove title and right of possession in them plaintiffs introduced evidence tending to prove claim of ownership and possession of the property by Joseph W. Scott, Sr., and possession by Joseph W. Scott, Jr., and Emma Jane Scott, his wife, it appearing that their oldest child, Warren F. Scott, one of the plaintiffs, was born in the house located' upon this property; a deed of conveyance for the
Plaintiffs proved also that there were born to Emma Jane Scott, the holder of the life estate in the property, by Joseph W. Scott, Jr., her husband, children as follows: Warren F. Scott, born about March 12, 1872; an infant stillborn; John Murdock Scott, born about November 6, 1875; Clarence Scott, born about April 8, 1878; James C. Scott, born about September, 1880, lived about fifteen years and died; Alexina E. Scott (Mrs. Hazelton) born about April 3, 1885; Emma Scott, born about February 12, 1888; Leah Scott, born about 1891 or 1892, lived a few months and died; and that the said Emma Jane Scott died on June 5, 1915, subsequently to the deaths of the two children.
The defendants assert title and' right of possession to the property in controversy by virtue of a special master’s deed dated August 4, 1879, issued in a suit brought by Henry B. Holbrook against Joseph W. Scott, Jr., and Emma Jane Scott, his wife, to foreclose a mortgage upon such property made by the latter to the former on June
Error is assigned upon the refusal to grant plaintiffs’ motion for a finding and judgment in their favor, the granting of defendants’ motion for a finding and judgment in favor of defendants, and in overruling plaintiffs’ motion for new trial.
In addition to what has just been said, it appears from the evidence introduced by defendants that they claim title under a special master’s deed issued in a suit brought to foreclose a mortgage on the property in controversy made by Joseph W. Scott, Jr., and Emma Jane Scott, his wife, and under a quit-claim deed for the property made by the same parties to a predecessor in title of defendants. And upon the doctrine that where both parties in ejectment claim title from a common source to the property involved, defendant is estopped to show an
The deed under which plaintiffs now assert title and ownership of the property in controversy is dated September 15, 1871. The first child of Emma Scott, the grantee of the life estate, by Joseph W. Scott, Jr., her husband, was born March 12, 1872, six months after the execution of the deed, and it is urged by plaintiffs that upon the birth of this child, if not at the time of the execution of the deed,'the child being then m ventre se mere, the estate in remainder created by the deed became vested and that this child and others born from time to time thereafter and their successors in title had, under the terms of the deed, a vested remainder in fee in the property and were entitled to its possession upon the termination of the life estate created by the deed.
The view we take of the case, however, renders it unnecessary to determine whether the language employed created a vested or contingent remainder in fee in plaintiffs. The point of difference between the two in so far as this case would be affected by it, namely, the difference in effect of a conveyance by a life tenant upon the estate in remainder, has been changed in England and very generally in this country by statute. Love v. Linstedt, 76 Ore. 66, 147 Pac. Rep. 935, 1917A Ann. Cas. 898 and note. In this State, under the provisions of Section 2455, General Statutes of 1906, Compiled Laws, 1914, deeds executed in the manner required by law operate under
It is said that although this may be true, plaintiffs have lost title and right to recover possession of the property because of the adverse possession and claim of ownership by defendants. That defendants have maintained actual possession of the property under claim of ownership in themselves for the statutory period necessary to vest the title in them seems not to be disputed and there is competent evidence in the record sufficient to establish this fact, but the géneral rule is that the statute of limitations does not begin to run against a remainderman until his right of possession acrues, that is to say, until the termination of the life estate, and as we have seen the life tenant lived until June 5, 1915. Dallas Compress Co. v. Smith, supra; Blakeney v. DuBose, 167 Ala. 627, 52 South. Rep. 746; Hall v. Condon, supra; Tilson v. Thompson (Mass.) 10 Pick. 359; Miller v. Ewing (Mass.) 6 Cush. 34; Wallingford v. Hearl, 15 Mass. 471; Wells v. Prince, 9 Mass. 507; Jackson v. Mancius (N. Y.) 2 Wend. 357; Jackson v. Schoonmaker (N. Y.) 4 Johns, 390; Devyr v. Schaffer, 55 N. Y. 446. There are, however, some modifications of this rule and this court has held in effect
There is proof in this case that defendants and their ancestors have been in the actual possession of this property since early in the year 1882; that they have added value to the property from time to time by placing improvements upon it; that plaintiffs have resided in the same community and have been cognizant of defendant's’ occupancy and improvement of the property during all this time; but there is no clear proof in the record of actual knowledge brought home to the remaindermen, the plaintiffs, of a claim to the property by defendants hostile to that of such remaindermen. There is nothing in defendants’ occupancy of the property for the period shown inconsistent with the right of occupancy derived from their ownership of the life estate in such property acquired by purchase. There is evidence to the effect that defendants received a letter in December, 1906, or January, 1907, from an attorney purporting to represent plaintiffs and that in response to such letter one of the defendants called at the office of the attorney and denied to him that plaintiffs had any interest whatever in the property, but there is no proof that any of the plaintiffs were present at this interview or that this attorney was authorized to represent them or that he ever communicated to them the assertion by defendants that plaintiffs had no interest in the property. It cannot therefore be said that if defendants’ claim t'o the property was hostile
From what has been said, it follows that the finding and judgment for defendants were error and the judgment must be reversed.
Reversed.
Browne, C. J., and Taylor, Whitfield and Ellis, J. J., concur.