56 Fla. 699 | Fla. | 1908
The defendants in error as plaintiff below instituted an action of ejectment against the plaintiff in error as defendant beloiw in the Circuit Court of Duval County, the defendant plead the general issue, and the trial resulted in a verdict and judgment for the plaintiffs, and to have this judgment reviewed the defendant below brings the case here by writ of error.
The court at the trial instructed the jury to find for the plaintiffs and this instruction is assigned as error.
The court erred in giving this instruction, but instead, should have instructed the jury under the facts to find for the defendant. The facts in the case were as follows : The plaintiffs claimed title to' the property sued for under a sheriff’s deed thereto made in pursuance of a sale thereof under an execution issued for the enforcement of a deficiency decree of foreclosure of mortgage in their favor against the defendant Tischler. Tischler’s rights and interests in the property thus sold and conveyed by the sheriff under -such execution were solely derived from the following instrument:
Elizabeth A. Henderson, too Philip Tischler. Lease.
This Indenture, made this 25th day of June, A. D. 1889, between Elizabeth A. Henderson, of the City of Jacksonville, Duval County, Florida, party of the first part, and Philip Tischler, of the sarnie city, county and State, party of the second part.
Witnesseth: That tire said party of the first part hath letten and ’by these presents doth grant, demise and to farm let untoo the said party of the second part, his executors, administrators and assigns, all that lot, piece or parcel of land, situate, lying and being in the City of Jacksonville, Duval County, Florida, and more particularly described as follows, to-wit:
Commencing at the northeast corner of lot eight (8)
With the appurtena'nces for the term of twenty-five years from the first day of October, A. D. 1889, 'at the yearly rental of Four Hundred ($400.00) Dollars to be paid in equal quarterly payments.
Arid the said party of the second part doth covenant to pay to the said party of the first part, the said yearly rental as herein specified, namely, in quarter-yearly payments on the first day of January, the first day of April, the first day of July, and the first day of October in each and every year, and at the expiration of said term the said party of the second part will quit and surrender the premises hereby demised.
And the said party of the first part, her heirs, executors, administrators and assigns doth covenant that the said party of the second part, on paying- the said yearly rent and performing the covenants aforesaid shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid.
And it is further covenanted and agreed that if the party of the second part, his executors or assigns shall at any time after the expiration of five years from the date hereof, pay to the party of the first part, her executors, administrators or assigns the sum of seven Thousand Five Hundred ($7,500.00) Dollars and all rent accrued
It is further covenanted and agreed by and between the parties hereto that at the expiration of twenty-five years from the date hereof, if the party of the second part should not purchase and pay for said property as hereinabove provided, that the value of the building's and other improvements placed or erected on said lot by said party of the second part shall be fixed by three disinterested parties, one to be selected by each party hereto and the third to be selected by the parties so chosen, and one-half of the valuation that shall be so fixed by said parties shall be paid by the said Elizabeth A. Henderson, her heirs, executors or assigns to the said Philip) Tischler, his heirs, executors, administrators or assigns, and the improvements be and become upon such payment the property of said Elizabeth A. Hénderson.
In Witness Whereof, we have hereunto set 'our hands and seals this 25th day of June, A. Di 1889.
E. A. Henderspn, (Seal.)
Philip Tischler. (Seal.)
In presence of:
John E. Hartridge,
R. M. Call.” .