Stokely v. Conner , 69 Fla. 412 ( 1915 )

Taylor, C. J.

(after stating the facts.) — To overturn said decree the appellants seem to reply here mainly upon the three propositions, vis: (1) That the appellees have not shown themselves- to have any title to the claimed undivided one-half interest in the particular one thousand acres described in the bill. That the undivided one-half interest in a 1000 acre grant shown to have been conveyed by Pedro Miranda to Joseph S. Sanchez and subsequently levied upon and sold under an execution and judgment against said Joseph S. Sanchez and purchased at the sale by the ancestor of the complainants below formed no part of the 1000 acre grant to Pedro Miranda that is described in the bill, but consisted of an entirely different tract. (2.) That the deed made by the Coroner of St. Johns County to the ancestor of the complainants in pursuance of an execution sale under a judgment against Joseph S. Sanchez, he being at the time Sheriff of the County* conveyed no title because no judgment against said Joseph S. Sanchez was shown or proven for the enforcement of which said execution was issued under which said sale was made. (3) That even if the complainants below showed title in themselves they are barred by adverse occupancy and possession for a period of seven years by the defendants below.

As to the first of these contentions we are satisfied upon a careful consideration of the evidence in the record before us that the land as described in the bill in which the complainants below claim an undivided one-half interest and estate is the same land confirmed by the United States Land Commissioners to Pedro or Peter Miranda- and in which Pedro Miranda subsequently conveyed by deed to Joseph S. Sanchez an undivided one-half interest and that this undivided half interest is in the same tract that was subsequently sold as the property of Joseph S. Sanchez by the Coroner of the County to satisfy- an execution against him. Some ground for confusion in the description arises out of the fact that in some of the mesne conveyances the names of different parties are given as being the owners of adjoining and bounding tracts, and because some of the ancient mesne conveyances mentioned “Blides Old Field” as being the situs of the tract, and the appellants contend that they have shown “Blides Old Field” to be located only about one and a half or two miles outside of the City of St. Augustine, whereas the land in controversy is situated some eighteen miles North of said city. We will remark in passing that the evidence relied upon by the appellants as locating “Blides Old Field” seems to us to be quite unreliable and at best hearsay. It was deposed by a son of the said Joseph S. Sanchez who related that on one occasion in driving 'along the road going into St. Augustine his father pointed out a place to him near the road and told him that was what was known as “Blides Old Field”, and that the place so pointed out to him was not over two and a half miles from the city.. But in spite of these seeming discrepancies in the descriptions given in the different mesne. conveyances the fact remains indisputable that there was but one grant, confirmed by the United States to Pedro'Miranda situated on the West side of North river with that river as its Eastern boundary, and containing 1000 acres, and that he subsequently conveyed an undivided one half interest in the 1000 acre grant thus confirmed to him to Joseph S. Sanchez, and that the United States Government subsequently had. this grant of 10.00 acres to Pedro Miranda surveyed locating it in the sections,.township and range as alleged in the bill. The said Pedro Miranda subsequently conveying to his daughter Rufina Miranda the remaining undivided one-half interest. The said Rufina subsequently intermarrying with one pisbee, by whom he had several children, and from these children as the heirs at law of their mother the said Rufina Bisbee the appellants, the Stokelys, have obtained quit-claim deeds so- worded as to convey in the aggregate the whole of said 1000 acre grant, but which in law and in fact can convey only such interest as they inherited in said tracts the same being an undivided one-half interest therein.

The second of the above contentions cannot avail the appellants at this time or here, for the reason that said Coroner’s deed made in pursuance of a public sale of said land under an execution against Joseph S. Sanchez was admitted in evidence without any objection to the effect that before it became admissible the judgment and execution under which such sale was made, .should have been introduced as a predicate for its admission. Had, this objection been made and urged at the. time the Coroner’s deed was offered in evidence, or. before the Chancellor,, the complainant would have had an opportunity, to introduce the missing judgment;'but by-their failure to .object upon this ground they must be held to have waived the objection and to have consented to the admission of the deed with all the probative force of which as such, it, upon its face, purported to possess. Simmons v. Spratt, 20 Fla. 495; Sullivan v. Richardson, 33 Fla. 1, 14 South. Rep. 692.

The third contention of the appellants that the decree appealed from is erroneous because the proofs show that the appellants the Stokelys have been in the adverse possession of the lands in dispute for upwards of seven years under a claim of right to the whole tract, and that the appellees are therefore barred by the statute of limitations from maintaining this suit, is likewise untenable. In the first place no such question as the bar of the statute of limitations was raised or presented in the pleadings of the cause, nor does it appear to have been advanced at the hearing before the Chancellor below, but, however this may be, we do not think that the proofs in the cause show such an act of ouster by the Stokelys of their co-tenants the Conners brought home to the knoweldge of the latter as would put in operation in favor of the former the bar of the statute of limitations. The appellants the Stokelys and the appellees the Conners are shown by the proofs to be tenants in common of the land in dispute. “The general rule is that the seisin or the possession of one tenant in common is deemed to be the possessor of all. But if one ousts the other, or denies his tenure, his possession becomes adverse, or if the circumstances show an intent on his part to hold adversely. But a tenant in common, to show an ouster of his co-tenant, must show acts of possession inconsistent with and exclusive of the rights of such co-tenant, and such as would amount to an ouster between landlord and tenant, and knowledge on the part of his co-tenant, of his claim of exclusive ownership. He has the right to assume that the possession of his co-tenant in his possession, until informed to the contrary, either by express notice, or by acts and declarations that may be equivalent to notice. Exclusive possession by one tenant in common, and receipt of the rents and profits of the common land, for a great length of time, is not sufficient to create a legal presumption of the actual ouster of a co-tenant.” 6 Lawson’s Rights, Remedies & Prac., 4439, and authorities there cited. The proofs here show that the land in controversy is a large tract of wild unimproved and unoccupied land. That the Stokelys or their lessees have boxed most of the pine trees on it for naval stores purposes, and collected therefrom the naval stores products, but this alone does not amount to an ouster of their co-tenants in the absence of any act or declaration brought home to their knowledge of an intention to deny their rights as joint tenants and to claim the whole tract adversely.

It is again contended for the appellants that according to the ruling of this court in Benner v. Street, 32 Fla. 274, 13 South. Rep. 407, and in Street v. Benner, 20 Fla. 700, no decree of partition should be made until all the defendants have answered, or until a decree pro confesso has been regularly entered against all those who fail to answer, and that the decree appealed from is erroneous because the transcript of record brought here on this appeal does not show that a decree pro confesso was entered against the defendants to the- bill who failed to answer or plead thereto. We are in perfect accord with the rule of practice laid down in the two cases last above cited. But there is another rule of practice equally binding upon us, and that is that where an appellant comes here complaining of alleged error, the burden is upon him to make the error complained of clearly to appear. The presumptions are always in favor of the correctness of tlie rulings and orders of the court below, and this presumption holds until the contrary is clearly and affirmatively made to appear. We take judicial knowledge that under our rules for the preparation of transcripts upon appeal the entire record below is not necessary to be brought up in the transcript, but only such parts thereof as may be directed to be incorporated therein by the written demands of the respective parties. Therefore the absence from a transcript of any evidence of this or that step or action having been taken in the court below iu cause is no evidence to this court that such step or action was not in fact taken therein. Besides this the Chancellor in an order recites the fact that a decree pro eonfesso'had been entered in the cause but had been opened up to let in a netv party. The appellant has, therefore, failed to make this alleged error affirmatively to appear. The decree appealed from is hereby affirmed at the costs.of the appellants.

Shackleford, .Cockrell, Whitfield and Ellis, JJ., concur.