Palmer v. Greene , 159 Fla. 174 ( 1947 )

The appellees, S. A. Greene and Flora Mae Greene, filed their bill of complaint in the Circuit Court of Pinellas County, Florida, to quiet title against Edward M. Palmer and wife, Ethel M. Palmer (a) to described land situated in the north part of Lot 6; (b) to described land situated in northeast corner of Lot 7 and a strip off the west side of Lot 8, all of Block 2 of Joseph Puig's Subdivision (now) situated in the town of St. Petersburg. The Greenes acquired title to Lots 6 and 7 during the year 1944; the Ownbys obtained their interest in Lot 8 in 1939, while the Palmers obtained title to Lot 5 in 1936. The tap root of the controversy centers around the exact boundary line dividing Lot 5 on the south from Lots 6 and 7 on the north, and on the east of Lot 5 from Lot 8 on the west.

The appellants contend that they have, with their predecessors, been continuously for twenty years or more in the open, hostile and undisputed possession, under fence or substantial enclosure, of tracts (a), (b) and (c)supra, and have during the period cultivated the same and planted it with fruit trees. Evidence appearing in the record tends to support this adverse possession, as shown by the testimony of the witness Fred H. Roberts to the effect that he helped to construct the fence on the west side forty-five years ago and saw the fence on the south at its present location some thirty-three years ago. Other witnesses place the boundary of these tracts at their present locations.

Counsel for appellees contend that appellants, the Palmers, failed to prove that they, with their predecessors in title, have been in the actual, adverse and continuous possession of tracts (a), (b) and (c) for a period of seven years under a claim of title exclusive of any other right but not founded upon a written instrument or judgment or a decree prior to the passage of Chapter 19254, Acts of 1939, Laws of Florida (Sections 95.18 and 95.19, Fla. Stats. 1941 (FSA). Pertinent part of the final decree is viz:

". . . and the Court further finds that the said Palmers at no time since Chapter 19,254, supra, became a law, viz: June 5, 1939, have returned the property in dispute by proper legal description to the assessor of Pinellas County, Florida, and have subsequently during each year paid all taxes thereto and thereafter levied and assessed against the property involved in this suit by the State of Florida and said County and by the City of St. Petersburg, Florida, before such taxes became delinquent. In fact, the Court has found that the said Palmers have failed to pay any taxes whatsoever on the disputed strips of lands involved in this suit."

The record discloses that the appellants in 1936 received deed to Lot 5 of Block 2 of Joseph Puig's Subdivision (with other lands) and immediately went into possession thereof, and this possession is shown to have been continuous and uninterrupted from 1936 until the filing of this suit October 25, 1945. Appearing in the transcript are copies of tax receipts describing Lot 5 supra, with other lands, issued by the City of St. Petersburg and the County of Pinellas to the Palmers on Lot 5 of Block 2 for the years 1936 to 1945, inclusive. It is true that taxes for these years were paid on the property described as Lot 5 of Block 2 of Joseph Puig's Subdivision. It is quite true also that the appellants did not make a return by an appropriate legal description to the City of St. Petersburg and Pinellas County for taxation purposes of the disputed strips identified as (a), (b) and (c), but the record discloses that they paid taxes on the property described as Lot 5 of Block 2 of Joseph Puig's Subdivision. It is our view that the provisions of Sections 95.18 and 95.19, Fla. Stats. 1941 (FSA) are inapplicable to the disputed strips of land involved in this suit. The ruling to the contrary by the lower court is therefore erroneous.

The plaintiffs below frankly admit that they have never been in possession of the disputed tracts since obtaining title in 1944 to Lots. 6 and 7 of Block 2 of Joseph Puig's Subdivision. We do not overlook our former rulings to the effect that it is not necessary for a plaintiff to allege in his bill of complaint in a suit to quiet title that the plaintiff is in possession of the property. McDaniel v. McElvy, 91 Fla. 770,108 So. 820, 51 A. L. R. 731; Conway v. Wilson, 132 Fla. 404,181 So. 385; Griffin v. Bolen, 149 Fla. 377, 5 So.2d 690, in suits to quiet title the burden of proof rests on the plaintiff to show with clearness, accuracy and certainty not only validity of his own title but the invalidity or inferiority of the defendant's title or claim, unless such invalidity or inferiority be admitted by the defendant. McDaniel v. McElvy,supra.

Our several statutes conferring the power and authority on courts of equity to make and enter orders and decrees quieting title to lands were never intended or designed by the Legislature to deprive a litigant of a right of trial by jury, as provided for in our fundamental law. Section 3 of the Declaration of Rights. These statutes cannot be construed to mean that it was the intention of the Legislature by their enactment to abolish the common law action of ejectment. It is still the law that where the common law remedy by ejectment is clear and adequate the parties have the right to have their actions, claims and demands settled or tried by a jury. Hughes v. Hannah, 39 Fla. 365, 22 So. 613; Trustees of Internal Imp. Fund v. Gleason, 39 Fla. 771, 23 So. 539; Briles v. Bradford,54 Fla. 501, 44 So. 937; Sawyer v. Gustason, 96 Fla. 5,118 So. 57, and similar cases. It is our conclusion that the remedy of the plaintiffs below is the common law action of ejectment.

The decree appealed from is reversed with directions for the entry of an appropriate order transferring the case at bar to the law side of the court — there to be heard and disposed of according to law.

It is so ordered.

TERRELL, ADAMS and BARNS, JJ., and MILLARD B. SMITH, Associate Justice, concur.

THOMAS, C. J., agrees to the judgment.

BUFORD, J., concurs specially.