Daggett v. Willey (6 Fla. 482, 1855)

BALTZELL, C. J.

delivered the opinion of the Court.

This is an action of ejectment instituted by plaintiff, Mrs. Doggett, to recover a lot of ground lying in the city of Jacksonsville. The case wastried by a jury, who found a verdict for defendant under instructions given by the Circuit Court. These being excepted to at the trial, together with the ruling of the Court in the exclusion and admission of testimony also excepted to, constitute the questions for the determination of this Court. They have been argued with ability on both sides, showing a degree of preparation and industry in the management of the case not often surpassed.

We have given to it a very careful consideration, due alike to its importance not only in the individual case, which does not involve property of very large amount, but in numerous other cases depending upon its determination; and we now proceed to announce the result of our deliberations. At the instance of defendant the Court admitted deeds from Lewis Hogan and wife (who was Maria Taylor, the grantee in a concession by the Spanish Government, more particularly alluded to hereafter,) and the heirs of Purnal Taylor to Isaiah D. Hart, which was objected to by plaintiff on the ground that Mrs. Hogans was not examined, and did not acknowledge the deeds apart from her husband. That they were insufficient to convey her right is admitted. The question arises, may not the deeds be available as evidence in the case notwithstanding this objection, and we think they may. They are obviously good for the interest of the husband during his life time and for that of the heirs after her death. The former was tenant by the courtesy and to that extent his interest was conveyed. This at all events gave color of right to defendant claiming under Hart, and is sufficient for the purposes of this action.

The fourth error assigned is to the receipt of certified copies of the proceedings of the Board of Land Commissioners in St. Augustine. If there were any such before the Court on the trial of the case, they are not to be found in the copy of the record before us. The fifth and sixth errors relate to the admission of the deposition of Francis J. Ross and the evidence of John McCormick, and constitute the leading points in the case. To determine them proper-13'’ it is necessary to have a clear conception of the state of the case as presented by the evidence at this stage of it.

The plaintiff adduced in evidence a deed from Isaiah D. Hart to Mills in trust for herself, dated December 18th 1836, she being at the time a feme covert, though now a widow and a feme sole, conveying a tract of land known as the Masters grant. This latter was founded upon an application to the Governor of Florida, dated 18th November, 1816, representing the straightened circumstances of the petitioner, and praying for a grant of one hundred acres of land of vacant hammock on'the north side of St. Johns river, opposite the battery of St. Nicholas, and bounded by Mr. Daniel Hogan’s plantation in the neighborhood of a creek.

A note attached to the order of the Governor acceding to the petition, is to this effect: “By a decree rendered at the instance of the petitioner of the 2d of last month, there was granted to him fifty acres of land at the south point of St. Johns bar, distant about one mile from Quesados battery, which grant has been made to him in consequence of his having proved that up to the present time he had located but fifty acres of the hundred granted him.”

The survey made in obedience to the decree is in these terms:

“I, Don George Clark, Lieut, of the militia of St. Augustine, of Florida, and Surveyor-General, appointed by the Government of the said place and province, do certify that I have measured and bounded for Don Juan Masters fifty acres of land on the north side of the St. Johns river, at a place called Cowford, or Ferry of the King’s road, being a part of one hundred acres granted to him by the Government on the 13th December, 1816, which survey agrees with the following plan and its original, which is recorded in the book of surveys of land under my charge.” Fernandina, 21st February, 1817. Signed George I. F. Clark. [The plat of survey describes the first line as rnnning from the confluence of Hogan’s creek and St. Johns river west thirty chains to the second line, which beginning on the St. Johns river at an oak, runs north 33 1-3 chains to a pine. Outside of the second line or west boundary of this grant are the words “Maria Taylor’s land.”]

Plaintiff claims that her western line connected with a grant made to another party, by virtue of a clause in the deed made to her by Hart, in these words: “All [he right and interest of said Hart to a tract of land bounded on the south by St. Johns river,' on the north and east by Hogan’s creek, and on the west by the lands granted to the heirs of Purnal Taylor, which described as above was formerly granted by the Spanish Government to Juan Maestre, and by Hart purchased from John Bellamy,