Andrew J. Coffee, Plaintiff in Error, vs. James M. Groover et al., Defendants in Error, 20 Fla. 64

The Chief Justice delivered the opinion of the court. Tliis was an action of ejectment brought by defendants in error to recover lands in Madison county, and tided in Jefferson on change of venue. A former trial resulted in a verdict for plaintiff in error, which was sot aside on appeal by this court in June term, 1882. 19 Fla., 61. The second trial, in March, 1883, resulted in a verdict and judgment for .the plaintiffs below, defendants in error, and now the defendant below brings error.

The present record brings np questions of pleading which were not before this court at the former hearing, the plaintiff below having been the appellant. The errors assigned will be considered in their order: I. The first is that the court refused to dismiss the cause on motion ot defendant below, on the ground that the matter had been adjudicated in the Circuit Court of the United States in his favor.

A former recovery relating to the same cause of action, as between parties and privies, may be matter of defence as an estoppel, to be proved at the trial, but it is not good ground of a motion to dismiss, and the motion was properly denied. IT. The second assignment of error has no foundation in the record. We do not find that the court decided that a judgment as between the plaintiffs in error and the executrix does not bind the heirs of decedent. Uo such judgment was offered at the trial. III. The third assignment is that the court erred in sustaining the demurrer to the pleas of res adjudicata.

In ejectment all legal defences may be made under the plea of not guilty, and the special denials mentioned in the statute. McC. Dig., 481. Special pleas of matter affecting the legal title, or in estoppel, only encumber the record and tend to embarrassment. Wade vs. Doyle, 17 Fla., 522; Real vs. Spooner, supra 88. They should bo struck out by the court sua sponte, . or on motion or on demurrer, because they are not proper pleas ; but a judgment sustaining a demurrer will not preclude proof on the trial of the facts so improperly pleaded. There was no error in the ruling. IV.

The fourth ground of error is that two of the defendants are married women, and they cannot maintain a suit at law in their own right, nor their husbands in the right of their wives, independent of them. This assignment we do not think applicable to the case. The husbands and their wives are joined as plaintiffs here in the right of their wives. This is the correct practice. Tyler on Eject., 169; 1 Chitty’s Pl., 82. V.

The fifth ground is “ because the court erred in' de- “ ciding that a grant issued by the State of Georgia, to “ lands outside of the State of Georgia, and within the “ limits of the State of Florida, is superior to a grant is- “ sued by the United States Government to the same lands, “ and that parties holding the said lands in Florida by said “ Georgia grant, have superior title to one claiming under “the U. S.

Government”: and the sixth ground is “ because “ the court erred in deciding that a party holding land in “ Florida under a Georgia grant for a long time'acquired a “ title superior to that of the United States Government, “ thereby deciding that the statutes of limitation could run “ against the government.” We do not understand this to be the ruling of the court at the trial, in substance or in effect. The testimony is substantially the same as that which was before the court upon the former trial. See 19 Fla., 68, et eeq.

It shows that the boundary line between Georgia and the Territory, and the State of Florida, was uncertain and in dispute ; that in 1842 Georgia granted this land to James Groover, describing it as laud in what was then Irwin county, in Georgia ; that the survey and plat by which the grant was made were made in 1820 by the Surveyor-General of Georgia; that the State of Georgia, through all the departments of its government, and the local authorities of Irwin and other counties, which were created out of Irwin county, claimed and exercised control g,nd jurisdiction of the territory as far south as the line known as the Watson line, and the courts exercised jurisdiction, civil and criminal; conveyances of land located there were recorded in Georgia; people living there were summoned as witnesses and jurors; the estates of people dying there were administered in the courts of Georgia; lands were surveyed, platted and granted by the authority of the government of that State down to the time of the establishment and recognition of the “ Whitner and Orr ” line by the States of Florida and Georgia, and by the Act of Congress of April 9,1872.

James Groover, the grantee of Georgia, was in possession of the land under the grant of 1842 at that time, and he and his grantees and the plaintiffs as heirs of such grantees remained in possession, improving and cultivating it, until they were dispossessed in 1876 by Coffee, against whom this suit is prosecuted. No definitely marked boundary line between Georgia and the Spanish province of Florida, or between Georgia and the Territory or State of Florida, had ever been recognized by the respective governments until the Whitner and Orr line ivas recognized by Congress in 1872.

The boundary was in doubt and in dispute up to that time when the Whitner and Orr survey, made under the authority of the respective States, was for the first time recognized, and grants made by Georgia down to the Watson line were also recognized. (We refer to the opinion of this court in Groover vs. Coffee, 19 Fla. R., 61, 76, for a more detailed statement of the action of the respective State governments on .the subject.) On the part of the defendant below, it was shown that the land in dispute was patented by the United States to the State of Florida, July 6, 1857, under

an act of Congress of September 28, 1850, as “ swamp and overflowed land,” it being a part of fractional

section twenty-nine, in township three, north, and range nine, east. On September 2, 1857, the Register of the Florida Land Office issued a certificate of purchase to McCall and Stripling, who assigned and conveyed to A. J. Coffee November 12, 1858, and on the 12th September, 1874, the Trustees of the Internal Improvement Fund of Florida executed a deed of the said

section 29 to Coffee. Coffee testifies that in 1839 his brother had a “ claim oh this land and cleared a part of it before it came into market, and he bought his brother’s claim; that Charles A. Groover had a -eleariug also on it, north of the Watson line, Coffee’s clearing being south of that line, and Coffee never took actual,possession oí the portion north of said line (which portion of

section 29 is the territory in dispute) until after the act. of Congress of 1872. The Groovers were dispossessed in 1876 by Coffee as appears by the testimony, and Coffee has been in possession since that time. There is nothing in this record nor in the history of the government of the Territory or the State of Florida showing that the authorities oí' the latter exercised any of the powers of government over this portion of

section 29 lying north of the Watson lino up to the time of the survey of the Whitner and Orr line, which was recognized and adopted as the boundary February 8, 1861, by the Legislatures of Georgia and Florida, and recognized by Congress in 1872.

The court and jury did not decide, as is assumed by plaintiff" in error, “ that a grant by Georgia of lands outside her territorial limits and within the State of Florida is superior to a grant by the United States government,” nor “ that the statute of limitations could run against the government.” What they did decide was that grants by a government de facto of parts of a disputed territory in its possession are valid against the State which had the right (12 Wheaton, 600 ); and that when a territory is acquired by treaty, cession or conquest, the rights of the inhabitants to property are respected and sacred.

Rhode Island vs. Massachusetts, 12 Peters, 657, 749; s. c., 4 How., 591, 639; U. S. vs. Clark, 8 Pet., 436, 445. And the principle applies to the States of this Union. Poole vs.

Fleegler, 11 Pet., 185, 209, In the latter case the court says (p. 210): “Although, in the compact, Walker’s line is agreed to be in future the bound-ary between the two States, it is not so established as having been for the past the true and rightful boundary.” We decided this to be the rule in the present case when it was before us on the former appeal, (19 Fla., supra,) and the cause was tiied the second time under the influence of the opinion and judgment ol this court. We find no reason for'modifying that judgment, and the error assigned is not sustained. VI.

The seventh error assigned is, that the court erred in admitting two deeds which do not show in what county or State the land described in them is situated, and it was improper to supply the deficiency by parol. In Atwater vs. Schenck, 9 Wis., 160, a deed was offered which described the land but did not mention the county or State. An offer was made to identify the land by a w7itness and the court, said “ this was competent evidence.” To the same effect: Hogans vs. Carruth, 18 Fla., 587, 590; Cutter vs. Carruthers, 48 Cal., 178, 184; 2 Greenl. Ev., §308.

The oral testimony in this case cleaidy proved the identity of the premises and the boundaries, and this was competent evidence. The deeds in this case hardly required any such explanation by parol. Vil. “ The court erred in ruling out the last will and testament of Charles E.

Groover, refusing to allow it to be read in evidence.” The paper offered was certified by the Ordinary of Brooks county, Georgia, that the “ foregoing copy of the last will and testament of Charles M Groover and codicil is a true copy from the records of this office.” There is no certified copy of any proceeding of any court showing that the will had been duly proved or recorded by authority of law. McC. Dig., 513, §2; id., 987, §8. It was not competent evidence. 2 Greenl. Ev., §§310, 315. VIII.

The ninth error assigned is “ in permitting a 'variance between the verdict as brought in by the jury at first and that prepared by the attorneys for plaintiffs, the verdiet- of the jury being for the plaintiffs (defendants in error) and five hundred dollars damages, but the verdict as prepared by the attorneys beiug for forty-eight forty-ninths of the land and the same amount of damages.” The record shows that the jury brought in a verdict generally for the plaintiffs and assessed the damages at $500, which was not entered in the record.

The court then directed plaintiffs’ attorney to prepare a verdict in proper form, and a verdict having been prepared was submitted to the jury with instructions from the court to retire and ex-' amine the verdict as prepared, and if they found it to be their verdict to bring it in as such, and the jury theu retired and returned it into court in writing.

The jury found that the plaintiffs were “ entitled to recover the interest claimed by them in the land in controversy, to wit.: forty-eight forty-ninths” of the land, (describing it in full) “and the jury assess the plaintiffs’ damages at five hundred dollars.” This verdict was recorded and judgment entered upon it. It is evident that if the verdict as first handed to the court had been recorded and judgment entered upon it, there would have been error, as the verdict was not in compliance with the statute.

It was within the power and it was the duty of the Judge before recording such verdict to recommit the matter to the jury and call their attention to the want of form and instruct them how to correct it. This was the effect of the action of the court. In a similar case in Maryland, after the court had adjourned for the day the jury signed and sealed a verdict and delivered it to the clerk, and when called to the bar next morning, before the verdict was recorded, they were sent back to correct it, as it did not determine the issues joined in the cause to their full extent, and they found a new verdict which did.

The court held that a judgment entered on the second verdict was correct. Edlin vs. Thompson, 2 liar. & G-ill., 31. The rule is that a j n ry may vary the form or correct a verdict before they are discharged and before it is recorded. Where the court put a verdict into form and it is read to the jury and they assent, this is sufficient. Rapps vs. Parker, 4 Pick., 238; Osgood vs. McConnell, 32 Ill., 74; Wright vs. Phillips, 2 Greene, 191; Burk vs. Comm., 5 J. T. Marsh., 675; Proffat on Jury Trials, Secs. 456, 461, and citations. IX. As to the verdict for the forty-eighth forty-ninths of the land.

The suit was commenced by seven plaintiffs who were shown to be the children and heirs at law of Charles A. Groover, (to whom the land was conveyed by the grantee of the original patentee from the State of Georgia,) and who died in possession in 1866. Annie E. Groover, one of the plaintiffs, died since this suit was commenced, leaving- the six surviving plaintiffs and her mother as her heirs at law. It does not appear that she was married, or that there was an executor or administrator appointed. At her death her estate descended by our statute to her mother, brothers and sisters.- McC.

Big., 468. ■ Her interest in the property was one-seventh, and her mother inherited one-seventh of one-seventh, to-wit: one forty-ninth, and the brothers and sisters six-sevenths, and thus they became the owners of forty-eight forty-ninths. Before the last trial the death of Annie E. Groover was suggested upon the record, .and it was ordered that the action proceed at the suit of the surviving plaintiffs.

Section 42 of

Chapter 1096, Laws of 1861, McC. Big., 829, Sec. 73, provides that if there be two or more plaintiffs and one or more of them should die, if'the cause of action survive to the surviving plaintiffs, the action shall not be thereby abated, but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiffs.. Under this statute the suit was properly continued in the names of the survivors, as their right of action to six-sevenths was not affected by the death ot the co-plaintift.

At her death the legal title to six-sevenths of the one-seventh which had belonged to the deceased was vested, cum onere, in the survivors, and thus the entire right and title ot the survi vors, to-wit: forty-eight forty-ninths which had been involved in the issue, remained so.

By rule 87, Circuit Court rules, “ in case of the death of one or more of several plaintiffs in ejectment, where the right does not survive to the remaining plaintiffs, the action may proceed at the suit of the surviving plaintiff for such share of the property as he claims,” or the legal representative of the deceased may be made a eo-plaintiff. Under this rule the right of the mother to the one forty-ninth not being involved in the issue, as she was not a party to the suit, of course had not survived to the remaining plaintiffs.

The jury were clearly right in finding that the plaintiffs were entitled to recover such interest in the land as was thus vested in them by law. As to the amount of the damages assessed, it is objected that the first verdict was for the plaintiffs generally, and for the whole property and $500 damages, and when the verdict was put in form for forty-eight forty-ninths the amount, of damages was not also reduced. AVe see no substance in this objection.

The jury in th& first instance found that these plaintiffs had suffered damage to the amount named and upon examination of the testimony that amount is fully supported. The testimony is that a fair average rental for the tillable land, (about eighty acres,) was one dollar and seventy-five cents per acre, and that Coffee had occupied it for about seven years. This, testimony would sustain a much larger amount of damages in favor of these plaintiffs. This answers the assignments of errors, as we understand them, and all the points made on the motion for a new trial.

We find no error in the record and the judgment is affirmed.