Richard Jones, Plaintiff in Error, vs. Alexander Lofton, Defendant in Error, 16 Fla. 189

Mk. Justice YauValkenburgh delivered the opinion of the court. This was an action of ejectment brought by Jones against Lofton, to recover possession of a lot in the city of Jacksonville. The declaration was filed May 25,1876. The defendant put in a plea of not guilty, and the cause was tried at the January term, 1877, of the Fourth Judicial Circuit for Duval county. The jury found for the defendant, and on the 29th day of January, 1877, judgment upon such verdict was duly entered. The plaintiff, on the trial to establish his right of action, introduced as evidence—First.

A deed for the premises described in the declaration from John S. Driggs, Special Master, to the plaintiff Jones, dated the 2d day of March, 1875,, reciting that the sale of the premises was made at publie auction and by virtue of a final decree of foreclosure made in the Circuit Court for the Fourth Judicial District for Duval county, on the 6th day of January, 1875,'in a cause wherein Samuel C. Thompson was complainant, and Francis "W. Solana and his wife were defendants; and that the plaintiff Jones was the purchaser at such sale. Second.

The final decree of foreclosure and sale recited in such deed, and up • oh which the sale of the said premises was made by John S. Driggs, Special Master in Chancery, therein and thereby appointed. Richard Jones, the plaintiff, in his own behalf, testified: “ He is familiar with the premises mentioned in the pleadings, and for which he has had this suit in ejectment brought against the defendant; he is not certain as to the number of the block or number of the lot; they are the same premises from which John H. Brown, deputy sheriff, removed me in a case of unlawful entry and detainer.” John H.

Brown, a witness for the plaintiff, testified as follows : “ I know ■ the premises in controversy; as deputy -sheriff I had a writ of possession placed in my hands commanding me to put Alexander Lofton in possession of lot 6' of block 59, Jacksonville, Florida, which covers the premises in controversy.

The following is the return I made upon the writ: “ Received this writ January 10,1876; executed the same January 11, 1876, by delivering to the within named Alexander Lofton the possession of the within described property, together with the appurtenances therein as described in said writ, in the county of Duval and State of Florida. “ (Signed) Jno. S. Deiggs, Sheriff D. C. “ By John H.

Beown, Deputy. “Richard Jones, plaintiff, was in possession at the time said writ was filed.” This was all the evidence introduced by the plaintiff; the defendant offered no proof; no exceptions were taken to the charge of the court. The plaintiff moved for a new trial for the reasons “ that the verdict was contrary to the evidence and to the charge of the court.” The court denied the motion, and the plaintiff brings the case here by writ of error.

The action of ejectment is one in which the plaintiff must show that he has not only the legal interest, but a possessory title in and to the premises in controversy, before he will be entitled to recover. The plea of not guilty puts in issue all of the allegations contained in the declaration, and it is not incumbent upon the defendant to show title or right of possession until the claimant has made out his case.

In order •therefore to enable the plaintiff to recover, when his right •of possession is thus controverted, he must prove—1st, that .he had the legal estate in the premises at the time of the .commencement of the action; 2d, that- he had the right of entry, and 3d, that the defendant or those claiming under him, were in possession at the time the suit was commenced. "Q-reenloaf’s Ev., § 304; Adams on Ejectment, 247; Daniel vs.

Lefevre, 19 Ark., 201. .Has the plaintiff complied with these requirements % The deed from the special master in chancery, conveying to him the premises he seeks to recover, seems to be in legal form, and was not objected to.- The decree of foreclosure of the mortgage given by Solana and wife to Thompson is also in evidence without objection, and it may be reasonably concluded, so far as plaintiff’s right to recover is concerned, that the title is vested in him.

Then has he the right of entry % He must not only show his deed and the execution under which the land was sold to entitle him to such right of entry, but he must prove title in the defendant in execution or possession since the rendition of the judgment, and then the onus probcmdá is cast on the opposite party. Hartley vs. Ferrell, 9 Fla., 374. Solana and his wife were the defendants in the foreclosure case, and Jones was the purchaser at the master’s sale under the decree; he was a stranger to the proceedings by virtue of which the premises were sold.

He proved no title in thé defendants in execution, and no evidence of his legal possession subsequent to his purchase. All the evidence of possession is uncertain, and it appears if he had any possession at all it was wrongful, as he was lawfully ousted under the forcible entry and detainer act. The jury passed upon that evidence, and by their verdict, under the charge of the court, which is not excepted to, found for the defendant.

The court also, in denying the motion for a new trial, acquiesced in the finding of the jury upon that question of fact, which seems to have been fairly presented to them in the charge. A still more serious objection to the plaintiff’s recovery in this action, upon his case as presented, appears in this, that he failed to prove the defendant in possession of the premises claimed at the time of the commencement of the action.

The plea of not guilty puts the allegation of defendant’s possession in issue, and it is as necessary to prove such possession before a recovery can be had, as it is to prove the legal title and the right of entry. This action was commenced on the 25th of May, 1876, and the proof only shows Lofton in possession by virtue of proceedings under the “ forcible entry and detainer ” act on the 11th day of January previous. The question of possession by the defendant at the time of the commencement of the action was not in the case of Hartley vs.

Ferrell, above cited, and consequently was not passed upon by the court in its opinion. See cases above cited; and also VanHorn vs. Everson, 13 Barbour, 526; Jackson vs. Ives, 9 Co wen, 661. The judgment of the court below is affirmed.