Doe on the Demise of Maria Daggett, Appellant, vs. Chas. Willey, Appellee, 6 Fla. 482

BALTZELL, C. J. delivered the opinion of the Court. This is an action of ejectment instituted by plaintiff, Mrs. Doggett, to recover a lot of ground lying in the city of Jacksonsville. The case wastried by a jury, who found a verdict for defendant under instructions given by the Circuit Court. These being excepted to at the trial, together with the ruling of the Court in the exclusion and admission of testimony also excepted to, constitute the questions for the determination of this Court.

They have been argued with ability on both sides, showing a degree of preparation and industry in the management of the case not often surpassed. We have given to it a very careful consideration, due alike to its importance not only in the individual case, which does not involve property of very large amount, but in numerous other cases depending upon its determination; and we now proceed to announce the result of our deliberations.

At the instance of defendant the Court admitted deeds from Lewis Hogan and wife (who was Maria Taylor, the grantee in a concession by the Spanish Government, more particularly alluded to hereafter,) and the heirs of Purnal Taylor to Isaiah D. Hart, which was objected to by plaintiff on the ground that Mrs. Hogans was not examined, and did not acknowledge the deeds apart from her husband. That they were insufficient to convey her right is admitted. The question arises, may not the deeds be available as evidence in the case notwithstanding this objection, and we think they may.

They are obviously good for the interest of the husband during his life time and for that of the heirs after her death. The former was tenant by the courtesy and to that extent his interest was conveyed. This at all events gave color of right to defendant claiming under Hart, and is sufficient for the purposes of this action. The fourth error assigned is to the receipt of certified copies of the proceedings of the Board of Land Commissioners in St. Augustine. If there were any such before the Court on the trial of the case, they are not to be found in the copy of the record before us.

The fifth and sixth errors relate to the admission of the deposition of Francis J. Ross and the evidence of John McCormick, and constitute the leading points in the case. To determine them proper-13'’ it is necessary to have a clear conception of the state of the case as presented by the evidence at this stage of it. The plaintiff adduced in evidence a deed from Isaiah D. Hart to Mills in trust for herself, dated December 18th 1836, she being at the time a feme covert, though now a widow and a feme sole, conveying a tract of land known as the Masters grant.

This latter was founded upon an application to the Governor of Florida, dated 18th November, 1816, representing the straightened circumstances of the petitioner, and praying for a grant of one hundred acres of land of vacant hammock on'the north side of St. Johns river, opposite the battery of St. Nicholas, and bounded by Mr. Daniel Hogan’s plantation in the neighborhood of a creek.

A note attached to the order of the Governor acceding to the petition, is to this effect: “By a decree rendered at the instance of the petitioner of the 2d of last month, there was granted to him fifty acres of land at the south point of St. Johns bar, distant about one mile from Quesados battery, which grant has been made to him in consequence of his having proved that up to the present time he had located but fifty acres of the hundred granted him.” The survey made in obedience to the decree is in these terms: “I, Don George Clark, Lieut, of the militia of St.

Augustine, of Florida, and Surveyor-General, appointed by the Government of the said place and province, do certify that I have measured and bounded for Don Juan Masters fifty acres of land on the north side of the St. Johns river, at a place called Cowford, or Ferry of the King’s road, being a part of one hundred acres granted to him by the Government on the 13th December, 1816, which survey agrees with the following plan and its original, which is recorded in the book of surveys of land under my charge.” Fernandina, 21st February, 1817. Signed George I. F.

Clark. [The plat of survey describes the first line as rnnning from the confluence of Hogan’s creek and St. Johns river west thirty chains to the second line, which beginning on the St. Johns river at an oak, runs north 33 1-3 chains to a pine. Outside of the second line or west boundary of this grant are the words “Maria Taylor’s land.”] Plaintiff claims that her western line connected with a grant made to another party, by virtue of a clause in the deed made to her by Hart, in these words: “All [he right and interest of said Hart to a tract of land bounded on the south by St.

Johns river,' on the north and east by Hogan’s creek, and on the west by the lands granted to the heirs of Purnal Taylor, which described as above was formerly granted by the Spanish Government to Juan Maestre, and by Hart purchased from John Bellamy, <fcc., including fifty acres, &c.”— The plaintiff adduced and read in evidence to the jury a grant to Maria Taylor, the widow of Purnal Taylor, for 200 acres “ commencing on the north side of St; Johns river, at the mouth of M’Coy’s creek, running thence 40 chains north to a pine, thence 50 chains east to a pine, thence 40 chains south to an oak on the St.

Johns river.’’ She then introduced evidence of Surveyors and others to show that the beginning of this latter tract on its western side was at a stump near McCoy’s Creek, and that blazes and chops were found on a line running North from it.

No corner was found here, and the line was made to terminate agreeably to the distance; the remainder of the line was run agreeably to course and distance, no corner nor blazes or chops having been found on the last and eastern line.—; Surveyed in this manner, this grant on its eastern side next to the Masters grant, terminated some two or three squares or blocks west of the lot in contest which lies on and directly west of Market street.

The position of the plaintiff obviously then is that the eastern line of the Taylor grant terminates at a point west of Market street, thereby throwing the lot in contest within the Maestre grant owned by her, and this she hopes to do by establishing a line as we have described, claimed as the true line by its chops and blazes on the west, and the remainder according to course and distance.

Under sueh a state of the case it is very clear that defendant had the right to adduce evidence showing that this line did not commence nor terminate as contended for, that on the contrary the actual survey terminated at a corner as its boundary and embraced Market street and of course the lot in question. This he proposes to do by the deposition of Francis J. Ross and the testimony of John McCormick.

Ross proves “that he was a commissioner for laying out the town.of Jacksonville about the year 1824, that Brady claiming a part of the town- site, and Hart another part, were present— that there was a tree standing on (he bank of.the river at the foot of Market street, which was claimed by Hogans from whom Hart had bought, to be a corner tree—the tree had marks upon it, but witness cannot swear that it actually was the corner tree.

Brady first deemed it to be such original tree and there was considerable dispute between them.” McCormick says, “he was present when the town of Jacksonville was laid out or a part of it, this was In 1822—he thinks the Commissioners were Major Chaires, Francis J. Ross, John Bellamy, Stephen J. Eubanks and perhaps others—thinks John W. Roberts acted as clerk of the commissioners—thinks they had a surveyor, he was D. S. H.

Miller—he said the corner was at the foot of Market street.” Here then we have on the eastern line a tree with marks upon it claimed by Hogan the former owner of the Maria Taylor grant to be a corner tree, insisted upon by the then owner Hart and in a degree admitted by Brady the owner 'ofthe Maestre grant—a tree existing in 1822 or 1824, when the town was laid out by the commissioners, ‘only'five or seven years after the survey. In addition to this we have the fact that D. S. H.

Miller a surveyor in the employ of the commissioners said “that was the corner”—thesame person (if we are not mistaken though the proof is not entirely distinct) who made the original survey and whose declaration under the circumstances would be entitled to ■weight. Wow, that this is material it is sufficient to state that the establishment of a corner tree at Market street fixes the eastern line of the Maria Taylor grant so as to embrace the lot in contest within its limits, and excludes it from the Maestre grant.

Taking it that plaintiff has. succeeded in fixing the western line of the same grant by a corner tree and blazes and chops, this testimony if believed by the Jury may be regarded as settling the eastern line at the foot of Market street and upon grounds supported by undeniable principles long since established in cases of disputed boundary. “ It is a general principle that the course and distance must yield to natural objects called for in the patent.

All lands are supposed to be actually surveyed, and the intention of the grant is to convey the land according to that actual survey; consequently if marked trees and marked corners be found conformably to the calls of the patent, or mountains, or any other natural objects, distances must be lengthened or shortened and courses carried so as to conform to those objects.

The reason of the rule is, that it is the intention of the grant to convey the land actually surveyed, and mistakes in course or distance are more probabio and frequent than in marked Irees, mountains, rivers, or the natural objects capable of being clearly distinguished and accurately described.” McIver’s Lessee vs. Walker, 9 Cranch, 173. 3 Cond. S. C. R., 338. 6 Wh. 58. 2 Hilliard, Real Prop., 254. Nor is this all that Ross and McCormick prove.

Ross says: “ There was considerable dispute between them, (Hart and Brady) but it was at last agreed between them that the tree above mentioned should be taken as the starting point, and the Commissioners should lay off that street (Market-street) as the dividing line between them.

Before the Commissioners would proceed to lay off the town the question was asked by the witness of both Hart and Brady, if they agreed to the street marked as Market-street, but which witness thinks was not at that time called Market-street, as the boundary line, and they distinctly stated they were so agreed—that they laid off the town and the streets and squares as marked by the Commissioners—he bought lots one and four in square two on the same day the town was laid off, (also directly west of Market-street) and sold them back to Hart.

At this time Hart was living at a house on or very near to what is marked on the plat as lot No. 5 in square two, also directly west of Market-street. He further says that in about a year Brady sold his interest to John Bellamy—that neither Brady nor Bellamy made any claim to anything west of Market-street, but on the contrary acquiesced in it as the boundary line, and witness never heard of there being any other line claimed until about a year or two ago, or perhaps a little longer, and witness bought lots of Brady at same time.” McCormick says: “ Mr. Brady claimed on one side of Market-street and Col.

Hart the other—the}’ were both present—they commenced at the foot of Market-street.— Hart and Brady each agreed to give one-half of the street. At the time the town was laid off Col. Hart lived near what is now Mr. Frazer’s office—Brady in the middle part of what is now Mrs.

Doggett’s house on the east side of Market-street.” We have then a dispute between the owners as early as 1822 or 1824—an agreement to lay out a town on their joint lands (and the town is laid out with one block -on the lands of Brady east of Market-street and two to the west on the lands of Hart)—an agreement between them that Market-street shall be the boundary, and each should give half the land for the street; in addition to this, possession by Hart as early as 1822 or 1824 and sales and purchases of lots underthis agreement, acquiescence in by the owners of the Masters grant, and by everybody to the time of the institution of the present suit, a period of upwards of thirty years.

That this admission—agreement as to the corner tree and boundary—connected with the action of the parties and others in laying off a town, and buying and selling lots, independent of the acquiescence for thirty years, with the adverse possession of Hogans and Hart and those claiming under them for nearly forty years, were proper evidence for the jury, we cannot hesitate for a moment in declaring. “ There are other declarations which are admitted as original evidence, being distinguished from hearsay .by .their connection with the principal fact under investigation.

The affairs of men consist of a complication of .circumstances so intimately interwoven, as to be hardly separate from each other. Each owes its truth to some preceding circumstance, and each has its inseparable attributes and its kindred facts, materially affecting its character, and essential to be known in order to a right understanding of its nature.

These surrounding circumstances, termed the res gestee, may always be shown to the jury along with the principal facts, &c.” 1 Greenleaf, §108-n. “There has been a difference of opinion in regard to the declarations of persons in possession of land, but it is now well settled that those in disparagement of the title of the declarant are admissible as original evidence, &c.

But no reason is perceived why every declaration accompanying the act of possession, whether in disparagement of the declarant or otherwise, if made in good faith, should not be received as part of the res gestee.'” Ibid 121. “ The declarations of Smith (who had been in possession of the premises and'from whom defendant derived title) while in possession, as to his title, were admissible for defendant; they would have been good against him, and are competent against all who claim under him.” 4 John. 229; 1 Ibid 343. “It is not to be controverted that parties whose rights to real property may be perfected, and the boundaries of which may be susceptible of certain and precise ascertainment, may by their acts conclude themselves by establishing other and different boundaries.” 4 John. 140; 2 Caine, 146; 10 John, 377. “ Acquiescence in an erroneous location for eighteen years is conclusive upon a party making or acquiescing in such location.” 19 Pick. 445; 6 Wen., 467; Hilliard Real Property, 229. “Admissions which have been acted upon by others are conclusive against the party making them, in all cases between him and the person whose conduct he has thus influenced.” 1 Greenleaf, §207. “ The admissions of one person are also evidence against another, in respect of privity between them; the term privity means natural or successive relationship to the same right of property, &c.” Ibid. 189. “ In other casés where the party by his admissions has qualified his own right, and another claims to succeed him, he succeeds only to the right as thus qualified when his tile commenced, &c.” Ibid! “ On the same principle other contemporaneous declarations of occupancy have been admitted as evidence of the nature and extent of their title against those claiming in privity of estate.” Ibid. §189. “ Long continued occupation under a grant may control courses and distances where no monuments are referred to, or when those referred to are gone.” 2 Hilliard R.

P., 347; 9 Pick., 520; 5 Green., 489. The admission of this testimony is by no means, we think, obnoxious to the objection of proving title to real estate by parol, or varying the boundai’y of the Maestre’s grant from the description given in the deed of trust to Mills. It conduces to establish the eastern line of the Taylor grant differently to where the plaintiff would locate it. Supposing the eastern line unsettled and the boundary in dispute, it settles that it was competent for the partios to terminate the contest and adjust and settle it.

For the reasons just stated, we do not think the Court erred in admitting in evidence to the jury the deeds enumerated in the bili of exceptions from Isaiah D. Hart to various persons, bearing date previous to the trust deed from Hart to Mills. These were a fair consequence of the agreement with' Brady establishing the eastern boundary line. They seem to have been recorded, and may properly be regarded as part of the res gesta.

We do not perceive the force of the application for the permission to read the bond of Ashlock to the jury; there is nothing on the face of it, as we understand it, to show “acts of ownership by Hart over the extreme west end of the Maria Taylor grant as claimed by him.” The boundary to the south by M’Coy’s creek is the only expression in the bond showing any connection with the grant alluded to. It was therefore we think properly excluded. Nor do we think there was just exception to the charge as to the surveys returned by Geo. I. F. Clark.

They had been read in evidence to the jury by plaintiff herself without objection of defendant, so that their authenticity was not a subject of question, but would seem to have been admitted by both sides. There was no attempt to impeach their verity, and no instruction was needed in their support.

We do not think the instruction that “ after so great a length of time circumstantial evidence tending to show the probability that the surveys of either grant covered the land in dispute is sufficient,” can be maintained, and very probably goes beyond what the learned Judge himself would think appropriate, on reflection.

There is no error in the ruling that although some portion of the evidence respecting the boundaries of these grants is mere reputation or hearsay, yet such evidence, taken in connection with other evidence, is entitled to respect in cases of boundary when the lapse of time is so great as to render it difficult, if not impossible, to prove the boundary by the existence of the primitive land marks or other evidence than that of hearsay.

Whilst the ruling as to the effect of the parol declarations and confessions of Brady and Hart are not stated so clearly and fully, and in connection with other acts as to the boundary line, as we might, approve, yet it will be seen from what we have already stated, that the.instruction expresses substantially the sentiments and opinions of this Court as to this testimony.

We do not understand the Court in the instruction as to plaiutiff’s claim depending on the plat or survey of the lands made by Clark, as rejecting the plat and lines run and marked; if considered in this latter point of view it would be evidently erroneous, The Court had already instructed as to natural boundaries and lines already run, as well as to the effect of the admissions of the parties, &c. Nor do we think there was error in the charge that the survey of Miller, of 1817, as testified by Suarez, and the lines marked by him, are not conclusive or binding upon either plaintiff or defendant.

To assume the conclusiveness of this testimony would be to take from the jury the decision of the credibility and sufficiency of the testimony of Suarez. Whether the royal title to the Maria Taylor grant vested an absolute title before the survey, was a question not connected with the merits and as far as we perceive, of no practical value in the case. The grant was admitted to be good with the survey, both parties claiming under it, and no question raised by either as to its validity.

Where then the propriety of raising the abstract question, that at some point of time and before the survey, it was void for uncertainty.

The 16th, 17th and 18th errors object-to the ruling of the Court as to the effect of the deed of Hart to Mills for plaintiff; contending that plaintiff was entitled by that deed to connect her western boundary with the eastern line of the Taylor tract, that this description is by metes and .bounds, and that Hart, and all persons claiming under him are estopped from settingup any other claim than the one recited in the deed. -It will be seen at once that the establishment of the eastern line of the Maria Taylor tract at Market-street relieves the case from all objection predicated upon this view.

But again, we are of opinion, after due reflection,that this deed must be considered in connection with and in reference to the facts and circumstances preceding it; we allude to those deposed to by Ross and McCormick which we give weight to, as the verdict has been in favor of defendant, and to the acquiescence of the parties to the time of the sale to Mrs. Doggett.

This will give to the Maestre tract some thirty acres beyond the amount of fifty acres granted by the Spanish Government, preserve the rights of parties existing now for near forty years undisturbed, and without violating any principle of law or equity.

Were this not a satisfactory conclusion to our minds, we should most probably be constrained to hold that the call in the deed to unite the two tracts was a mis-description inconsistent with the leading and main and principal object of the deed, which was t6 convey the Maestre grant derived from the Spanish Government and from him to Brady, Bellamy and Hart to plaintiff. And there is much reason and foundation for such opinion. It is very obvious that these two grants do not unite by any call in common; they were not surveyed so !as to unite, and their very appearance on the plat repudiates such connection.

The call for course and distance of the Maestre grant gives the full compliment of fifty acres. To unite it with the Taylor grant to the full extent contended for, would probably give eighty acres. Nor is it pretended that there are natural calls to enlarge it, either that the oak on the river or the pine on Hogan’s creek, the western line, were or ever were claimed by any body •to be the corner tree of or on the eastern line of the Taylor tract.

True, we perceive on the plat of the surveys, outside of the boundaries, the -words “Juan Maestre lands” on the Taylor plat, “Dona Maria Taylor’s lands ” on the Maestre plat. It would be strange indeed that these should be construed as extending' the boundary of either, but suppose they do, is the extension to be on the part of the Maestre grant and not on the other? Had Hart in his deed conveyed the lands in the Maestre grant, and any other intermediate land between that and the Maria Taylor grant as surveyed by course and distance, there would be greater room for the position.

Admitting that there was doubt even upon the Ross and McCormick testimony, as to the corner tree and eastern line of the Taylor grant, ■it was competent for the owners to adjust it and to settle and fix the lines, and.to treat with persons in buying and selling in reference to such line as established, especially in a case of such notoriety as the present. In the construction of a grant the Court will take into view the attendant circumstances, the situation of the parties, the state of the country and the thing granted. 2 Hilliard Real Prop. 328; 3 Mass., 352; 4 Ibid., 205; 10 Ibid., 459.

We then do not think these objections tenable, though not altogether concurring in the propriety of the instructions themselves. We do not agree to the instruction that in a case of a sale by the owner of one of two contiguous estates, without defining the true boundary, the grantee is estopped to inquire into the original boundary, but must abide by the line claimed by the grantor prior to his acquisition.

Nor do we assent to the instruction that a disputed question of boundary is forever put at rest by the vesting of both .estates in the same person, and that all persons claim’' ing under him are absolutely estopped from asserting the boundary to be other than he had uniformly declared it to be. This would he giving to declarations of a party a sanction and verity far beyond what has ever been claimed for them, and would substitute parol, fluctuating testimony of oral declarations, in place of writing.

Nor do we assent to the ruling that if the owner of two contiguous estates alter the dividing line between them, and afterwards sell either of them by name, his grantee, if cognizant of the alteration, takes the estate with the new boundary. Nor to the next, in which the effect of selling .by name is also stated. We regard them as inapplicable to the case, not justified by the' testimony and calculated to mislead.

If the instruction that although quantity yields to course and distance, and yet quantity rpay and ought to be considered as a description when the exact boundaries are difficult, to ascertain, be merely that this may be considered by the jury amongst other things,-we may not think erroneous, but it should be so qualified. Whilst then several ofthe instructions given to the jury have been found erroneous, yet the inquiry arises as to the finding and whether the judgment should be reversed on account of them. The rule is that there must be some possibility of injury arising out of the matter excepted to. 2 Hill N.

Y., 210; Cowen & Hill’s Notes to 1 Phil. Ev., 787-8. An erroneous instruction to the jury cannot be assigned for error, if the verdiet is sustained by the evidence. 6 Blatch., 258. Where a judgment effects the proper results, no matter by what erroneous reasoning it may have been induced, it will not be reversed. 11 Ala., 149. Although instructions to the jury are not correct, yet if the verdict is right, judgment will not be reversed. 6 B. Mon., 44.

When the jury have given a correct verdict, it will not be set aside for erroneous instructions of the Court, when instructions correctly given on those points could not have changed the result. Hill vs. Calvin, 4 How. Miss. R. 231. Tested by these rules we are of opinion that the verdict is fully sustained by the evidence—that it is right upon the law and facts of the case, and cannot perceive that the -erroneous instructions given can have induced to any injury in the case. The judgment will therefore be affirmed with costs.