Louis Dubois, Appellant, vs. Amos Holmes, Appellee, 20 Fla. 834

The Chiee#ustice delivered the opinion of the court. Ejectment brought by Holmes against appellant for two parcels of land in Duval county. Plea, not guilty. Plaintiff introduced in evidence a deed to himself executed by Thomas Coskery in 1879, and a deed by J. J. Daniel to plaintiff in 1881, conveying the respective parcels. These deeds comprised the whole evidence. . The court charged the jury that if it found that Coskery and Daniel conveyed by deeds duly executed the land sued for and that defendant has shown no legal title or right of possession their verdict should be for the plaintiff. Defendant excepted.

Defendant’s counsel asked the court to instruct the jury that unless they find from the testimony some otl^er source of title or right of possession than is afforded by the deeds of Coskery and of Daniel they should find for defendant. The court refused so to charge and exception was taken. Verdict for plaintiff and judgment thereon from which defendant appealed. It is incumbent on the plaintiff in ejectment to prove proper conveyances from a party having the title.

If the conveyance is from a party in peaceable possession claiming title at the time it was executed, that is sufficient for that is prima fade evidence of title. Tyler on Ejectment, 541. The production of a deed of conveyance, upon the trial of all action of ejectment, will not entitle a plaintiff to a verdict when the title is in dispute. ISTor will such evidence put the adverse party upon his defence. He must show in addition, either that his grantor and those under whom he claims had the title or the possession claiming title. Dominy vs. Miller, 33 Barbour, 386; Stevens vs. Hauser, 39 N. Y., 302.

In the absence of a regular documentary title there should have been introduced at least presumptive evidence by showing some possession, or other $fact such as is allowed by the common law to make out a prima fade case of ownership. The giving of a deed is no evidence of title in the grautor. Smith vs. Lawrence, 12 Mich., 431. This is believed to be the rule everywhere except in Massachusetts. Artemas Ward vs. Fuller, 15 Pick., 185; Higbee vs. Rice, 5 Mass., 352. But there the rule is founded upon the phraseology of the statute. Here we have no evidence that plaintiff’s grantor ever had title or possession.

It is not a ease of vacant or unoccupied land for the defendant is in possession, and the plaintiff must show a superior right in himself or his grantors. It is claimed here that Coskery and Daniel have a title because they have executed a deed. Plaintiff claims under their title but no possession in them is shown. ' The judgment is reversed and the court below will set aside the'verdict and grant a new trial.