Henry Keech and T. A. MacDonell, Plaintiffs in Error, vs. Isabel Costa y Maestre ed Enriquez and Carlos Enriquez y Lopez, her husband, Dolores Cortina y Maestre de Oruna and Margarita Cortina y Maestre de Rufin,Defendants in Error, 28 Fla. 597

Taylor, J.: On the 21st of June, 1884, the defendants in error, Isabella Costa y Maestre de Enriquez and Carlos Enriquez y Lopez, her husband, Dolores Cortina y Maestre de Oruna and Margarita Cortina y Maestre de Rufin, instituted their action of ejectment in the Circuit Court of St. Johns county against the plaintiffs in error, Henry Keech and T. A. MacDonell, for the recovery of possession of the following described land in St. Johns county, viz:

Section 39, township nine (9), south of range thirty, east, being the grant of land confirmed by the United States to Bartolo M. Maestre, containing 797.30 acres. After issue joined upon a plea of the general issue, one of the defendants, Henry Keech, filed his petition in the Circuit Court of St. Johns county for a change of venue of said cause, on the ground that the plaintiffs had an undue influence over the minds of the inhabitants of St. J ohns county. On the 11th of March, 1886, the petition for change of venue was granted, and the cause removed for trial to Clay county, in the Fourth Judicial Circuit.

On the 24th of March, 1886, the cause was tried in Clay county before a jury, and resulted in a verdict and judgment for the plaintiffs. Motion for a new trial was made upon the following grounds : 1st. That the verdict of the jury was not sustained by the evidence adduced on the part of the plaintiffs ; 2d. That the verdict of the jury is contrary to the charges of the court; 3d. That the court erred in charging the jury — in giving the instructions asked by the attorney for plaintiffs, including 1, 2, 3, 4, 5 and 6; 4th.

That the court erred in refusing defendants’ instructions one and two and seven, as requested; 5th. That the verdict of the jury is against the evidence. This motion was denied, and from this judgment the defendants in the court below have taken their writ, of error to this court. The errors assigned are : 1st. The court below rejected proper evidence on the part of defendants ; 2d. The court below erred in giving improper instructions on behalf of plaintiffs; 3d. The court erred in refusing to give proper instructions on behalf of defendants ; 4th.

The court erred in overruling the motion of defendants to set aside the verdict of the jury and for a ' new trial; 5th. The court erred in rendering a judgment in favor of the plaintiffs, and against the defendants. We will consider these assignments of error in the order in which they come. After a careful scrutiny of the record we are unable to discover where any evidence of any character was offered by the defendants at the trial below and rejected by the court.

Neither can we find that any exception was taken or noted to any refusal of the court below to admit any evidence offered by the defense ; consequently the first assignment fails for want of facts to constitute its subject matter. The second assignment of error is, that the court erred in giving improper instructions on behalf of plaintiffs. This assignment we will consider in connection with the third ground of the motion for new trial, which, in substance, asserts the error of court below to be in giving the 1st, 2d, 3rd, 4th, 5th and 6th instructions.

These instructions, that we find from the bill of exceptions were excepted to in their entirety, are as follows: 1st. That if the jury believe from the evidence that the plaintiffs have proved the title to the land in question to be in them, they are entitled to recover it. 2d. That if the jury find .from the evidence that the plaintiffs have been beyond seas during adverse possession under color of a title under

Chapter 1865 of the Laws of Florida, the plaintiffs have the right to appear and contest the title within- any time before coming to Florida, or within a year after coming to Florida. 3d. Possession of land is presumed to be in the iegal owner at all times when there is not actual adverse possession in some one else. 4th. Adverse possession, in any case to'bar a person having the title, must be continuous and uninterrupted for the entire time required by law, which, in actions for the recovery of real property or possession thereof, is seven years.

Whenever adverse possession is interrupted the time must begin anew. /5th. An illegitimate child can inherit on the mother’-s side as well as though legitimate. 6th. If the jury find from the evidence that the plaintiffs, their agent or tenant, were in the possession of the land in question at any time within seven years before the bringing of this suit, the statute of limitations will not run against them.

The first of these instructions, although stating a correct proposition of law, might have been confusing to the jury because of its failure to inform the jury that although the legal right to the land might be in the plaintiffs, that yet their remedy to secure that right might have been forfeited by lapse of time and an adverse possession by the defendant: but we think this defect- in the first instruction was subsequently supplied by the first instruction asked for by the defendant and given by the court, so that no harm could have resulted from the broadness of this first instruction.

The second instruction above is predicated upon

Section 6 of

Chapter I860, Laws of 1872, entitled: “An act to quiet tax titles to lands,” which statute provides, in brief, for the sale and conveyance by the Commissioner of Lands and Immigration of till lands, after the expiration of six months after publication of lists thereof, that have accrued to the State by virtue of any tax deed made or executed for the non-payment of any raxes due the State.

Section 6 of said act provides that any deed made in conformity with its provisions which shall have been recorded for one year in the county where the land is situated, shall operate as a complete bar against all persons who might thereafter claim title to said land in consecpience of any informality or illegality of the taxes or proceedings, &c., but provides that infants, persons of unsound mind, imprisoned, or “beyond the sea,” shall have the right to appear and contest such title to said lands within one year after their disabilities are removed.

This charge, confined as it was to the special title acquired by the defendants under the provisions of this statute, we think was proper, as the title or color of title offered by the defendants in support of their claim was acquired under the provisions of this special law ; and the plaintiffs, according to t.h° proofs, being residents continually in the Island of Cuba; which, according to the settled doctrine upon the Subject, brings them within the meaning of the term “beyond seas.” The now well settled meaning of that term in statutes of limitatation being held to be equivalent to “without the limits of the State.” Angell on Limitations, sec. 200; Murray’s Lessee vs.

Baker, 3 Wheat. (U. S.), 341; Bank of Alexandria vs. Dyer, 14 Peters (U. S.), 141. The plaintiffs here were not only out of the limits of t-lie State of Florida, but were beyond the limits of the United States in a foreign territory. And it is further well settled that the exception in favor of ‘ ‘ persons beyond seas ” is not to be confined to subjects who may occasionally leave the country and return, but it is general, and extends to foreigners who are constantly resident abroad, as in the case of the plaintiffs here. Angelí on Limitations, sec. 204, and authorities there cited.

AYe think, however, that this second instruction urns unnecessary in the case from the fact that the special limitation provided in

Section 6 of said

Chapter 1860 for the institution of actions to assail titles acquired under said act is operative only upon deeds acquired under said act “that have been recorded.” The deed acquired by the defendants under this act, although appearing to have been spread upon the records of St. Johns county, has never yet been “recorded ” in the legal acceptation of that word, because there has never been any proof of its execution authorizing a record thereof. Edwards vs. Thom., 25 Fla., 222; 5 South. Rep., 707; Hope vs. Johnston, 28 Fla., -, (decided June Term, 1891); 9 South. Rep., 830. The special limitation provided for in

Chapter 1885 could not apply in this case because there has been no record of the defendant’s deed acquired under that act. We think, too, that the court below ruled properly in excluding the defendant’s deed acquired from the Commissioner of Lands and Immigration under said

Chapter 1865 except for the purpose of showing color of title, because of the fact that said deed had no witnesses. This act, like all other statutes that undertake to confiscate the property of the citizen through the medium of sales thereof for taxes, must be strictly construed.

Section 4 of this act provides with great particularly a set form for the deeds to be made under its provisions, and this prescribed form requires two subscribing witnesses. The deed offered by the defendants has none, and was properly confined to its value in evidence as color of title only. Paul vs. Fries, 18 Fla., 573. The third instruction above is a correct proposition of law and only needs for its support a reference to

Section 4 of

Chapter 1869, Laws of 1872. The fourth instruction above also states? the law correctly. Not only is it the well settled common law of this country, but sec. 5 of

chapter 1869, providing periods of limitation of all kinds of actions, expressly' provides that- there shall be a continued adverse occupation and possession for seven years of premises included in any instrument held as a claim of title in order to bar the true owner from its recovery. Tyler on Ejectment, p. 910 et seq. and authorities cited. The fifth instruction above is also a correct statement, of the law as contained in our statute, sec. 8, p. 470, McClellan’s Digest, which provides that illegitimate children shall inherit property in this State through the mother equally with legitimates.

We think the sixth instruction above did riot state the law accurately or correctly.

Though the plaintiffs may have acquired possession of the land at some time within seven years prior to the institution of their suit, still that possession may have been an unlawful one; and the statute of limitation may have already ripened the defendant's claim into a perfect possessory title prior to such unlawful interruption of his possession by the plaintiffs; but as there is no proof to show that the defendants had acquired a per-: feet title by possession anterior to the interruption thereby by the plaintiffs, and no proof to show when that interruption took place, the. giving of this charge is error without injury.

The third assignment- of error, to the. effect that the court erred in refusing instructions asked on behalf of defendants, must be confined to the refusal of the court to give the 3rd, 8th and 9th instructions requested by the defendants, as these are the only ones refused to be given by the court, and the only ones to the discarding of which exceptions were in any manner taken by defendants at the trial below; though the fourth ground of the motion for new trial erroneouslj' cites the first, second and seventh instructions as being the ones refused.

The instructions refused, numbered here as in the record, are as follows : 3d. “In considering the time against the plaintiff you will put all the possessions together that were hostile to the plaintiffs that were in privity to the defendants, and through which they claim, and then ascertain if they make more than seven years hostile adverse possession, and if you ascertain that fact, the defendants are entitled to a verdict.” 8tli. “If the jury find from the evidence that Keech, one of the defendants, entered upon the land in dispute under color of title and held possession thereof adversely to the claim of the plaintiffs seven years before the interruption of possession by plaintiffs, then such adverse possession comes within the statute of limitations, and the plaintiffs are. therefore, barred from re-entering, and you -should find for the defendants.” 9th. “If the jury find from the evidence that Bartola M.

Maestre filed his claim to the Maestre grant in 1820, and that in 1824 the said Bartola M. Maestre died; and that the claim of the said Bartola M. Maestre was not confirmed until 1827, after his death, then the plaintiffs cannot recover, there being no one living by the name of Bartola M.

Maestre, to whom said grant could haye been, confirmed.” The third instruction above asked for and refused was not at all applicable to the facts in this case, as. there was no attempt, even, by the defendants to prove that any one else, except Keech, the defendant, ever occupied or possessed this land, that were in jxrivity with him in any other capacity than as liis. agent or tenant. The only possession attempted to be proved was by him or by his agents or tenants, whose possession was, of course, his.

There were, therefore, no filets upon which to construct the theory of the “tacking of possessions” by different persons at different times in privity of title with each other, as. is contemplated by this instruction; and there was no error in its refusal. Instructions in a cause must be predicated upon some testimony adduced át the trial, and must be pertinent to the facts; otherwise they are abstract propositions. J. T. & K. W. Ry. Co. vs. P. L. T. & Mfg. Co., 27 Fla., 9; 9 South, Rep., 661; Robinson vs. Barnett, 19 Fla., 670.

There was no error in the refusal to give the eighth instruction above asked by the defendant, as we do not think it was warranted by the evidence in the cause. There was no proof as to what years Keech, the defendant, had held possession of the land, or for how long a time he had possession of it; nor was it shown when his possession, if he ever had any, was interrupted by the jflaintiffs. Neither was there any evidence to show that his right to the land had ripened into a complete possessory title by seven years’ adverse occupancy thereof anterior to the interruption of that possession by the plaintiffs.

There was no error in the refusal of the court to give the ninth instruction above asked for by the defendants. The enunciation, as law, therein proposed, is directly in conflict with the decisions of this court in McGee vs. Alba., 9 Fla., 382, and in Magruder and Logan vs. Roe, 13 Fla., 602, in which it is properly held that the operation of the 8th

Article of the Treaty of February 22d, 1819, between the United States and Spain for the cession of the Floridas, was to confirm as grants or purchases in presentí all grants or purchases made by or of the Spanish government anterior to the date fixed in said treaty without further action on the part of the United States through its Congress. Under the law as announced in said two decisions, Bartola M.

Maestre in 1820, when his grant was made to him by the Spanish authorities, became then vested with the title to the land embraced in said grant, in presentí, without any further action on the part of this government. The fourth and fifth assignments of error, the refusal of the court to grant a new tidal, and the entry by the court of the judgment in the cause, we consider together.

Without commenting at length or in detail upon the evidence in the cause, after careful consideration thereof, our conclusion is, that the plaintiff's have established the fact by proper evidence that they are the sole heirs at law to the land in dispute of the original grantee from the Spanish government, Bartola M. Maestre. They have by proper evidence at least made out a strong prima facie case that they are such heirs at law and entitled as such to the land in question; and having done so, the burden was then thrown upon the defendants to prove the contrary.

The defense having made no effort to break down the prima facie case thus made by the plaintiffs, the fact of their identity as such heirs must be held to have been established. Tyler on Ejectment, p. 488, et seq., to p. 495, and authorities cited.

Our conclusion, for the reasons heretofore given in commenting on the deed from the Commissioner of Lands and Immigration to the defendant Keeoh, is that such deed was not sufficient to vest the title in Keeoh; and we conclude further that the evidence adduced by the defense as to adverse possession of the land was not sufficient to justify any other verdict than the one found by the jury in favor of the plaintiffs. Discovering no errors in the record sufficient to disturb the judgment of the court, below, the same is hereby affirmed.