L'Engle v. Reed (27 Fla. 345, 1891)

Mabry, J.:

'Phis is a .suit of ejectment instituted in the Duval Circuit Court by appellee as plaintiff in the court below against E. M. L'Engle, appellant, as defendant below, on the 23rd day of June, 1885, to recover possession of lots four, five and eight, in block 18, and the southwest quarter of lot two, in block 11, known and designated on the map or plan of a tract of land known as McIntosh’s addition to the town of La Villa, said map or plan being recorded in book “A pages 768, 769, of the records of 'deeds of Duval county, State of Florida, and for mesne profits.

The defendant in 1 he court below filed the plea of the general issue.

' By consent of parties this cause was, at the Spring-term, 1887, of the Duval Circuit. Court, referred to Loton M. .Iones, Esq., for decision.

The cause was submitted to the referee by the respective parties on June 27th, 1887, and after bearing the evidence introduced, the referee, on the 26th day of September, 1887, rendered judgment in favor of the plaintiff below for the possession of the southwest quarter of lot two, in block 11, lot eight, in block 18, and all oí lot four, in block 18, which lies east of a line drawn' parallel with the western line of the McIntosh addition, said line being 112 feet to the eastward of the western line of the said McIntosh addition, all according to the map and plan of the McIntosh addition to the town of La Villa, which said map or plan is recorded in book “AG,” pages 768, 769 of the records of Duval county, Florida, and the costs of this suit.

On the same day of the rendition of the judgment defendant below made a motion before the referee for a new trial on the following grounds: 1st. The court erred in admitting in evidence deeds from Hilliard Jones to Daniel Hanson, and from Hanson to Bingham, and from Bingham to McIntosh, offered in evidence by plaintiff. 2d. The findings and judgment of the referee were contrary to law. 3d. The findings and judgment of the referee are contrary to the evidence in this case. 4th. There was not sufficient evidence to base the referee’s findings upon. This motion was overruled by the referee, and judgment entered against, defendant below, from which he appeals to this court- and assigns the following errors: 1st. The referee erred in admitting in evidence the deed from Hilliard Jones to Daniel Hanson. 2d. The referee erred in admitting in evidence the deed from Daniel Hanson to Charles K. Bingham. 3d. The referee erred in admitting in evidence the deed from Charles K. Bingham to Andrew J. McIntosh. 4th. Referee erred in admitting in evidence the deed from A. J. McIntosh to John H. Reed. 5th. The referee erred in admitting in evidence the testimony of E. F. L’Engle, pages 63 and 64 of record as to possession of Hilliard Jones. 6th. Referee erred in admitting testimony of J. F. LeBaron, page 75 of the record, as to his opinion that exhibits B, C and I) cover land in exhibit A.- 7th. Referee erred in admitting the testimony of \V. S. Walker, pages 376 and 177 of record, as to statements, sales, &c., and alleged acts of possession. 8th. The referee erred in his 'findings of fact and law, as found and reported in this cause. 9th. Tile referee erred in overruling appellants motion for new trial herein on the grounds therein stated, and erred in giving final judgment herein rendered. 10th. The judgment in this (‘ase is contrary to the law and the evidence in the cause.

The chain of title by which the appellee, plaintiff in the court below, claims the land described in the declaration is as follows : Deed from Joseph S. Baker to Hilliard Jones; deed from Hilliard Jones to Daniel D. Hanson ; deed from Daniel D. Hanson to Charles K. Bingham ; deed from Charles K. Bingham to Andrew J. McIntosh, and deed from Andrew J. McIntosh to John H. Reed, plaintiff below. The appellant, defendant in the court below, claims title to the land in controversy by deed from Josepli S. Baker to F. F. L’Engle, and by deed from F. F. L’Engle to himself as trustee.

It is admitted that Joseph S. Baker was at one time seized and possessed of the land in question, and both parties claim title from him.

To maintain his cause before the referee, tile plaintiff below, appellee here, offered in evidence a certified copy of the record of the deed from Joseph S. Baker to Hilliard Jones. From this certified copy-it appears that the deed bears date the 18th day of August, 1853. The description of the land in the deed from Josepli S. Baker to Hilliard Jones is as follows: “All that piece or parcel of land lying and being and situate in the county of Duval and State of Florida, containing by estimation fifteen acres, more or less, and bounded as follows, to-wit: on the north by lands of said Jones and William I). Smith, on the east by a street 30 feet wide, the right and title to which the party of the first part reserve to themselves, which said street separates from lands now claimed by I. D. Hart, on the south by the Alligator road, and on the west by a street 30 feet wide, which separates said tract or parcel of land from lands owned by the party of the first part, which also retain the right and title to said street.”

Plaintiff below next introduced in evidence a certified copy of the record of the deed from Hilliard Jones to Daniel I). Hanson. This deed, as appears from the certilled copy of the record, bears .date the 12th day of December, 1865. Defendant below' objected to the introduction of this certified copy because the deed was not properly acknowledged or proven for record. We will postpone the consideration of-this objection until w'e present the phase of the case as to the location of the lots in question, w'iih respect to the two chains of title.

The description of the land in the deed from Hilliard Joftes to Daniel D. Hanson, so far as it relates to the land in question, is as folio w's: “All that certain piece or parcel of land situate and being in the county of Du-val, in said State, lying near to, and to the northwest of the city of Jacksonville, in said county of Duval, and described as follows, to-wit: beginning at a point where the western boundary line of the Hogan or Taylor grant crosses the King’s road, and running on said road north fifty-five (55) degrees, w'est- 3.0 chains and 15 links to a post, and from thence south 85 degrees, west. 23 chains and 28 links to the Lake City road to a post, thence on said last mentioned road south 82 degrees, 21 chains and 90 links to a post in the west boundary line of the said Hogan or Taylor grant, thence north along the said line 16 chains and 90 links to the place of beginning, containing 29.38 acres, more or less.”

Plaintiff below' next introduced in- evidence a certified copy of the record of a deed from Daniel D. Hanson to Charles K. Bingham. It appears from the record introduced that this deed was dated the 31st day of May, 1867. Objection was made by defendant in the court below to the introduction of this certified copy, on the ground that the same was not properly acknowledged for record, but this objection will be considered later. The description of the land in the deed from Hanson to Bingham, in so far as it relates to the locus hi quo, is the same as in the deed from Jones to Hanson above recited.

Plaintiff below next introduced in evidence a deed from Charles K. Bingham to Andrew,!. McIntosh, and which bears date July 3 0th, 3880. The land described in this deed is the same as that given above in the deed from Jones to Hanson, and in the deed from Hanson to Bingham. A deed from Andrew J. McIntosh and wife to John II. Reed was next introduced in evidence by plaintiff below.

!n the deed from McIntosh to Reed, bearing date the 4th day of June, 1884, the following extract from it will show the description of land conveyed, and also the interest in same, to-wit; “Witnesseth that the said parties of the first part, in consideration of the sum of one dollar to them duly paid, have sold, and by these presents do grant and convey io the said party of the second part, Ins heirs and assigns, one undivided two-thirds part of all. those tracts or parcels of land situate at the northwest of the city of Jacksonville, county of Duval, and State of Florida, known and described on a map by Griffin & Walker in 1881 for said Andrew J. McIntosh and John IT. Reed, and which map was filed in the office of the clerk of the county of Duval the-day of June, 1881, viz: Lots 1 and 2, block 12; lot 2, block 13; lot 2, block 0; lot 4, block 9 ; lot 3, block 9; lots 3 and 5, in block 10 ; lot 2, block 10; lot 2, block 11; lots 1, 4 and 5, block 18 ; lot 8, block 11; lot 8, block 18 ; it being understood that this grant conveys said interest in said lots, and each of them, to the extent and size as laid down on said map, and not otherwise. ” ■

The descriptions in the deeds from Joseph 8. Baker to F. F. L’Engle, and from F. F. L’Engle to E. M L’Engle, trustees, introduced in evidence by defendant below, is as follows: Beginning at a point on the Black c.reek or Alligator road where the same is crossed by the western, boundary of lands belonging to I. I). Hart, the same point being the southeast, comer of lands belonging to Hilliard Jones, thence west 10 degrees, fifty-five minutes north by and along said road 1173 feet to a stake marked with a cross and a chop, thence north 38 degrees, forty-five minutes east along the western boundary of lands belonging to Hilliard Jones 1324 feet to a stake marked with two crosses and two chops, on the southern edge of the St. Mary’s or King’s road, the same point being the northwestern corner of lands belonging to Hilliard Jonds, thence, by and along the sai