William H. Kendrick, Appellant, vs. James E. Latham and Ida Latham, Appellees, 25 Fla. 819

Raney, C. J..: I. The certified copy of the record, of the deed of convey anee from Sumner to Blackshear does not show that Blackshear ever acknowledged, or either of the subscribing witnesses ever proved the execution of the original deed; hence the record of it on January 12th, 1878, by the Clerk of Hernando County Circuit Court, was illegal, and this being so, the certified copy was not admissible as such to prove either the execution or the contents of the original.

It is a well established proposition of law that the record must be made upon the evidence of execution required by. the statute to entitle a certified copy to be used as evidence in lieu of the original. Edwards vs. Thom., 25 Fla.; S. C., 5 So. Rep., 707; England vs. Hatch, 80 Ala., 247; Hines vs. Chancey, 47 Ala., 637. The provisions of

section 21,

Article NVI, of the Constitution, embody this principle, as well as require that it shall appear that the original is not. within the custody or control of the party offering the copy. Bell et al. vs. Kendrick, decided at this term.

The purpose of the referee in holding or admitting the certified copy only to the extent that it might be subsequently supported by evidence, as he did, was, it would seem, merely to permit such copy which had been “ filed and offered in evidence,” to remain on file before him to be used in case it should be rendered available to the defendant by further testimony ; and even though holding or admitting it to the extent indicated was, technically speaking, not proper practice, yet in this case we do uot see that any harm has resulted from it to the plaintiff.

Without further objection upon the part of the plaintiff, testimony was at a subsequent stage of the cause introduced to show that Sumner executed a deed conveying to Blackshear the land described in the copy, and the certified copy was testified to as being a true copy of such original, and thus made available to the defendant. It is only in connection with, and as a part of this oral testimony as to the original deed, that the certified copy can be regarded to have been considered by the referee, and in this connection we think it was properly considered by him. Thompson vs. Nash, 15 Texas, 419. II.

Kendrick’s conveyance from the Trustees of the Internal Improvement Fund of the east half of the southwest quarter of

section 15, was made on the 23d day of November, 1859, or about twenty-seven years and four months beforejhe commencement of this suitin March,1887. It does not appear, however, that he has ever parted with his title to the north half of this eighty. His conveyance of February 16th, 1860, to James Weeks, included the south half of the southwest quarter of the section, and consequently carried the south half of the above “ eighty,” but this did not affect, his ownership of the north half, or “ forty,” in which the ten acres of the land now in controversy, are.

There is no proof that Weeks ever occupied this forty; nor was it sold as a part of his estate by the commissioner under the order of the County Judge of Hernando county, or mentioned in such order. As there has been no conveyance of the land in dispute, or the “forty” which it is a part of, by Kendrick, the defendant must rely upon adverse possession for the period of seven years under the statute of limitations.

Our statute of limitations declares that in every action for the recovery of real property or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time prescribed by law and the occupation of such premises by any other person, shall be deeemd to have been under and in subordination to the legal title, unless it appear that the premises have been held and possessed adversely to such legal title for seven years before the commencement of the action.

Section 4, page 781 McClellan’s Digest. See also Caro vs. Pensacola C. Co., 19 Fla.. 766; Tyler on Ejectment and Adverse Enjoyment, 102 and 852 et seq. Kendrick having shown title, the burden was upon the defendant to show adverse possesion for the statutory period. Wade vs. Doyle, 17 Fla., 522, 527; Sharp vs. Dauhgney, 33 Cal., 505.

The same statute provides, by its fifth section, upon the question of adverse possession as against the true title, that whenever it shall appear that the occupant or those under whom he claims, entered into the possession of premises under claim of title exclusive of any other rights, founding such claim upon a written instrument as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises including in such instrument, decree or judgment for seven years, the premises so included shall be deemed to have been held adversely, except that where the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract.

The chief purpose of this

section is to provide that were the premises or tract covered by the written instrument, judgment or decree upon which claim of title is founded is not divided into lots, a continued actual occupation and possession of a part of the described premises for the specified period in the manner required b y law, shall be deemed to extend to the entire premises, or in other words, that such continuous actual occupation and possession of a part for seven years shall be constructive and legal occupation of the whole as it is described in the written instrument, decree or judgment. The sixth

section declares that “ for the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment or decree, land shall be deemed to be possessed and occupied in the following cases : First, where it has been usually cultivated or improved ; or Second, where it has been protected by substantial enclosure ; or Third, where (although not enclosed) it has been used for the supply of fuel, or for fencing timber for the purpose of husbandry, or for the ordinary use of the occupant; Fourth, where a known lot or single farm has been partly improved, the portion of such farm or lot that may have been left not cleared, or not enclosed according to the usual course or custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the

part improved or cultivated. It is clear from the testimony that Blackshear occupied the land in the latter part of the year 1875. Even ignoring the presumption arising from the evidence that such entry was under Sumner, his possession from the date of his deed of conveyance from Sumner, January 15th, 1876, must be regarded as an entry under claim of title in hostility to the true owner, Kendrick, and exclusive of any other rights, and founded upon a written instrument as being a conveyance of the premises described therein. Tyler, 107, 108, 876; Jackson vs. Parker, 3 Johnson’s Cases, 124; Jackson vs.

Thomas, 16 Johnson, 293; Jackson vs. Newton, 18 Ibid, 355. From this date his entry became ádverse'to the true title. Of course there is nothing in the record indicating that his original occupation of the land was as the tenant of Kendrick, or in subordination to his title. Blackshear having moved on the place in 1875, remained in possession until the fall of 1879.

The testimony shows that as early as 1869 one Martin put a small house either on this “ forty ” in question, or the one immediately south of it, constituting the south half of the eighty, for the purpose of putting a stock of goods in, which purpose, however, he did not carry out; and that in the same year one Jeffcoat did'put a stock of goods in it and lived on the south side of the forty in controversy and cleared a small field and built and planted some orange trees and lived there three or four years and then left the place and went away.

There is nothing to show any privity between the possession of these parties or of either of them and Black-shear, even if it be that the former were anything than mere trespassers without claim of title. Blackshear opened about two acres of land and fenced it with a pine rail fence and set out some orange trees, and cultivated some of the land in corn, and some in potatoes, and also made a workshop out of an old house. His improvements were on both of the “ forties,” and the fence erected by him remained until it was repaired and “moved out,” and was kept in a condition to keep stock out as a general thing.

The “ forty ” within which the ten acres in controversy lie is not “ a tract divided into lots ” within the meaning of the exception of the fifth

section of the statute. If the fourth clause of

section six is to be taken as a limitation upon

section four as an entirety, the forty may properly be regarded as “ a known lot,” within the meaning of such clause. Reasoning upon the premises either that thisfourth clause is, or that it is not to be so taken, our opinion is that the character of Blaekshear’s actual possession and improvements were for the time the possession lasted, such as to constitute an adverse possession of the entire forty, within the meaning of the act. Even it the fourth clause mentioned controls, then his improvement and possession of part of the “ forty ” were such as constituted adverse possession as well and for the same length of time of the part “ not cleared or not enclosed ” as of the

part improved and occupied. Of course the possession was constructive as to the part not cleared or improved. The above provisions of the statute of limitations have been in force in California and Wisconsin and New York, having been enacted by New York in the year 1830, and from that State were probably taken by Wisconsin and California. In the States mentioned the words “ or of some part of said premises,” occur after the word judgment where it appeal’s last in the fifth section, and in New York and Wisconsin the expression “ known farm or single lot,” is used in the last clause of the sixth

section in the place of “ known lot or single farm,” in the same clause in California and Florida. Wood’s California Digest, 46; Revised Statutes of Wisconsin of 1878, p. 1014, and vide 23 New York, p. 25; Tyler, pp. 102-3. Without entering upon the question of constructive possession in the case of very large bodies of land of which but a small

part is cultivated, improved or enclosed, as in Munro vs. Merchant, 28 N. Y., 1, and Thompson vs. Durhans, 61 N. Y., 52, we are satisfied that there is nothing in the size of a quarter of a quarter

section of land to avoid the application of the doctrine of constructive possession either independent of the statute, or under it and considered as modified by the sections last set out above. Baldwin vs. Simpson, 12 Cal., 560; Langford vs. Poppe, 36 Cal., 73; Pepper vs. O’Dowd, 39 Wis., 338; Coleman vs. Eldred, 44 Wis., 210; Tremaine vs. Weatherly, 58 Iowa, 615; Ellicott vs. Pearl, 10 Peters, 412; Barr vs. Gratz’s Heirs, 4 Wheaton, 213; Welborn vs. Anderson, 37 Miss., 155; Kile vs. Tubbs, 23 Cal., 432; Rose vs. Davis, 11 Cal., 133; Crispen vs. Hannavan, 50 Mo., 544; Watson vs. Mansell, 76 Ala., 600.

The possession of Blackshear did not continue seven years, and consequently we must consider other questions presented by the record. Where there is privity between successive occupants holding adversely to the true title and continuously, the successive periods of possession may be united or tacked to each other to make up the time of adverse holding prescribed by the statute as a defence against such title, but this cannot be done if there is not such privity. If this were not the case, as says Thompson, J., in Schrack vs. Zubler, 34 Penn.

St., 41, the first intruder might abandon his intention of holding adversely and leave the possession-, and a succeeding one might enter and claim without authority a quality in the predecessor’s possession which he had abandoned. Tyler, 912-917; Overfield vs. Christie, 7 S. & R., 173; Smith vs. Chapin, 31 Conn., 530.

Where one is in adverse possession of land and pending the running of the statutory period, the land is levied upon and sold by a Sheriff under an execution issued upon a valid judgment against him, and the purchaser at such sale enters into possession, such sale and the conveyance by the Sheriff is sufficient to establish privity between the defendant in the judgment and the purchaser. Tyler, 917; Scheetz vs. Fitzwater, 5 Penn. St., 126. In the case at bar the referee rejected the evidence' offered by the defendant to prove the execution and judgment upon which the Sheriff’s deed professes to be founded.

Though the record of the proceedings re-establishing the execution and judgment in favor of Mayo, as administrator of Edrington vs. Blackshear and others, is in the appeal transcript, they cannot be considered by us in support of the Sheriff’s deed. This results from the simple fact that they were never admitted in evidence in the case. That it may have been erroneously excluded, makes no difference. Teegarden vs. Carpenter, 36 Miss., 404.

The only evidence before us that can be relied on as establishing privity between Blackshear and Coogler, or Coogler’s privity with Blaekshear’s claim of title under the deed from Sumner, is the Sheriff’s deed to Coogler. A Sheriff’s deed is not of itself evidence of that officer’s authority to levy and sell. In England it has been held that proof of the writ of execution is sufficient. Doe vs. Marless, 6 M. & S., 113; Doe vs. Thom. 1 M. & S., 425; and so in Georgia, in Whatley vs. Newsom, 10 Ga., 74; and I am not satisfied that this was not the view of this court in Hartly vs.

Ferrell, 9 Fla., 374; yet subsequent authorities hold that a valid judgment must also be shown; Davis vs. Shuler, 14 Fla., 447; Donald vs. McKinnon, 17 Fla., 748; and this is said to be the rule in several States. Tyler, 529. In Hester vs. Coats, 22 Ga., 59, 60, it is observed, and 'properly'too, that although a mere Sheriff’s deed maybe enough to lay foundation for the statute to begin to run on, it is not, when unaccompanied with the judgment or execution, sufficient to connect a possession under it with a previous possession under the person named in it as defendant in execution.

In the absence of proper proof of the authority of the Sheriff to levy and sell, his position as to the occupying defendant in execution is that of a trespasser. Privity between successive occupants will not be supported by a trespass. Moffit vs. McDonald, 11 Humph., 457. . Had the record of the proceedings re-establishing the lost judgment and execution been admitted in evidence, we sould, even under the rule announced in Davis vs. Shuler, and Donald vs.

McKinnon, supra, hold, in view of the evideuce which that record contains, as shown by the plea to the petition, of the jurisdiction of the court of the person of the defendants in the action in which the judgment was rendered, that the Sheriff’s deed was properly admitted in evidence, but as such record was not admitted, our conclusion is that the Sheriff’s deed is not of itself sufficient to show privity between Coogler and the title under which Blackshear claimed.

The second objection made to this Sheriff’s deed was, that it did not recite how long notice was published, or when, or in what county the sale took place, or that the sale was made at the court house door, or within the legal hours of sale, were properly overruled.

The deed states that sale was made at public auction on the day of its date, the sixth day of October 1*79, “after duly advertising the same according to law.” Without intimating an opinion as to the effect of an entire want of notice, or of a notice deficient in time, or otherwise, we are satisfied that the recital as to the publication of notice is, in the absence of proof to the contrary, sufficient evidence that the sale was legally advertised for the period of thirty days preceding the sale.

Freeman on executions, sections 285, 286; and our conclusion is that where there is no showing to the contrary, it is to be presumed that the Sheriff sold at the “¡court house door,” as required'by

section 11, p. 523 McClellan’s Digest; and that he sold at an appropriate hour, and in the county. It is not pretended that the sixth day of October, 1879, was not the first Monday in that month, and consequently a sale day. The deed from the Sheriff to Coogler, notwithstanding what we have said above, is considered of itself, or unaccompanied by the execution or judgment, a sufficient written instrument, within the meaning of the statute, to sustain a claim of title and start the running of the period of limitation in favor of one entering under it and claiming adversely or exclusive of any other rights.

Beverly vs. Burke, 9 Ga., 440; Hester vs. Coats, supra. This being So, if there was an adverse holding within the meaning of the statute, by Coogler and those claiming under and in privity with him, for seven years before the commencement of this ejectment action, the judg’ment of the referee should not be disturbed. Coogler took possession in 1879, after the Sheriff's sale of October 8th. It is unnecessary under the view we have to take of the case, to fix the precise time. "Whether it was in October or December, the period of seven years could not expire till the corresponding time in the year 1888.

On December 22d, 18S1, Coogler conveyed the entire half of the quarter

section to Mrs. Thomlinson, and on May 1st, 1883, she conveyed to J. F. Latham “ thirty acres of the land, being the north part of the northeast (1-4) fourth of the southwest quarter of” said section, describing it. It is apparent from the testimony that this thirty acres did not include any of the enclosed or cultivated land, although a part of the same “ forty.” Latham says he took possession after buying and held it and improved it until he sold it back to her and her husband, E. Ravesies, in the summer of 1884, she having prior to this time married Ravesies.

In August of the same year Latham bought ten acres of the same thirty from Mr. and Mrs. Ravesies and improved it and moved on it in November, and has been on it ever since. On this ten acres, which is the land covered by the plea of not guilty, he says there were no improvements until he placed them there. We understand him to mean that he put them on it after his last purchase just mentioned.

It is clear that this ten acre piece of land is one of which there has been no enclosure, cultivation or pedis possession but the possession claimed of it, as by Blackshear and others down to Latham’s possession after his purchase in 1884, is riot actual, but constructive, as resulting from the actual enclosure, improvement and possession of the part of the quarter

section enclosed. This being so, it was essential that there should be a sufficient written instrument establishing privity between Latham as grantor and Mrs. Ravesies as his grantee as to this ten acres. If he had sold without such •an instrument, then the privity between him and her extended only to that part of the thirty acres actually protected by a substantial enclosure, or in fact usually cultivated or improved. Sections 7 and 8, p. 732, McClellan’s Digest.

There is in the transcript a copy of an instrument bearing date March 30, 1884, by which, according to its terms, Lath-am and wife bargained, sold and conveyed to Ravesies and wife the thirty acres mentioned above. The instrument has no seal to it. There is also another instrument without seal, dated November 1st, 1884, by which Ravesies and wife, according to its terms, sold, conveyed and transferred to Latham and wife the same thirty acres.

These instruments were offered in evidence by the .defendants, and rejected by the referee, the former having been objected to by the plaintiffs on the ground that it was not sealed, and not evidence of title ; and the latter that it was not sealed and not admissible to record, and not evidence of title. Though the decision of Simpson vs. Downing, 26 Wendell, 316, may seem to support the theory that a formal deed is necessary to keep up privity between successive occupants, except as to that part of the land actually enclosed, cultivated or improved, we prefer the position taken in Crispen vs.

Hannavan, 50 Mo., 536, where a deed without a seal was held sufficient. See also Watts vs. Parker, 27 Ill., 224. Considering the office performed by the written instrument in cases of adverse possession under the statute of limitations, we think that a formal deed is not necessary to a transfer pending the running of the statutory period. McNeely vs. Lasgan, 22 O. St., 32; Fugate vs. Pierce, 49 Mo., 441; Watson vs. Mansell, 76 Ala., 600; Clements vs. Hays, 76 Ala., 280; Cunningham vs. Fredotzen, supra.

These instruments, we may remark, are not deeds, as they are not sealed ; Blackstone’s Con., Book II, p. 295 ; nor are they mortgages, and consequently they are not controlled by the provisions of

section 21 of

Article XYI of the Constitution, as to the admission of such instruments to record, or in evidence. The mere fact, however, that they may not be admissible to record is no objection to their being used in evidence. We do not say that they are not admissible to record under the statute, (McClellan’s Digest, pp. 214-215,) but even if they are, we are inclined to think their execution must be proved as at common law to entitle them to be used in evidence. Whether these instruments wmre admissibse or not, they were in fact not admitted, and cannot be considered by us as being in evidence. Teegarden vs.

Carpenter, supra.

The former of these papers not having been admitted, the fact that Eavesies and wife may have taken actual possession of that part of the thirty acres of which Latham, when he sold to them, had actual, as distinguished from constructive, possession, still their doing so did not in the absence of an instrument of the character indicated, carry to them constructive possession of any part of which Latham had only constructive possession; and of course when Latham surrendered to Eavesies and wife that of which he had actual possession, his constructive possession as to the balance of the thirty acres terminated, for the simple reason that actual possession of the part under the sixth

section of the statute, or independent of it, is essential to constructive possession of the balance of the land described in the original instrument under which the claim of title is made. Cunningham vs. Fraudson, 26 Texas, 34; Chandler vs. Rushing, 38 Texas, 591; Cooper vs. Ord, 60 Mo., 420. The deed from Mrs. Tomlinson to Latham, dated May 1st, 1883, was objected to on, account of erasures and interlineations, as explained in the statement of the case.

In the absence of evidence to the contrary, an alteration will be presumed to have been made contemporaneously with the execution of the instrument, and properly made, if nothing appears to the contrary. There was no error in overruling the objection, as there is nothing in the evidence, nor upon the face of the instrument as it appears in the transcript, to overthrow this presumption. Stewart vs. Preston, 1 Fla., 10; Meikel vs. State Savings Institution of Chicago, 36 Ind., 355; 1 Greenleaf on Evidence,

section 564. The judgment is reversed, and the cause remanded for a new trial.