Milton v. Danford , 100 Fla. 761 ( 1930 )

In this case writ of error was taken from an order granting a new trial.

Danford brought suit against Jesse Milton and his wife, Jessie Milton. The plaintiff based his suit and right to recovery upon a deed without warranty from J. M. Miles and wife, Mae Louise Miles, dated the 7th day of September, 1928, and a tax deed from the Clerk of the Circuit Court of Hillsborough County to Mrs. J. M. Miles dated the 10th day of August, 1928. The tax deed recited that the lands were sold for taxes by the tax collector of the County of Hillsborough on the 5th day of July, 1926, for the unpaid taxes for the year A.D. 1925, as the property of "Unknown."

The record shows that at the time of the conveyance from Miles and wife to Danford, the plaintiff, the defendants were then in the open adverse possession of the lands involved in the suit. A judgment was rendered in favor of the defendants.

The law is well settled that a deed by one to land which is in the adverse possession of another is void as against such adverse claimant and also that where conveyance is made of lands which at the time are in adverse possession of one not a party to the deed ejectment will not lie in the name of the grantee to such deed, but only in the name of the grantor. See Coogler v. Rogers, 25 Fla. 853, 7 So. R. 391; Nelson v. Brush,22 Fla. 374; Doe v. Roe, 13 Fla. 602; Watkins et al. v. Emmerson et al., 88 Fla. 86, 102 So. R. 10; Farrington v. Greer, 94 Fla. 457, 113 So. R. 722.

It, therefore, appears from the record that no judgment in this case could have been lawfully entered in favor of the plaintiff and it was, therefore, error to grant a new trial. The order granting the new trial should be reversed and the cause remanded with directions that the verdict in favor of the defendant as originally entered shall stand at the basis for the judgment in this cause, unless a motion in arrest of judgment, or for judgment non obstante veredicto, shall be made and prevail. It is so ordered. Florida East Coast Ry. Co. v. Davis, 96 Fla. 171, 117 So. R. 842; Sec. 4615, Comp. Gen. Laws, 1927; Wilhelm v. South Indian River Co., 124 So. R. 729.

Reversed and remanded.

TERRELL, C. J., and WHITFIELD and STRUM, J. J., concur.

ELLIS and BROWN, J. J., dissent.