Opinion
December 18, 1951.
Appeal from the Circuit Court for Polk County, D.O. Rogers, J.
King Staufer, Winter Haven, for appellants.
Paul Ritter, Winter Haven, for appellees.
On February 18, 1946, Ida Lucas Alford and husband, Smith Alford, filed their declaration in ejectment in the Circuit Court of Polk County, Florida, against W.S. Moore claiming title and right of possession to ten acres of lands therein described. Attached to the declaration was a bill of particulars disclosing the chain of title to the described tract under which the plaintiffs asserted title and the right of possession. The defendant Moore filed pleas to the plaintiffs' declaration and thereafter the plaintiffs filed replications to the defendant's pleas.
The plaintiffs, on March 8, 1947, filed a motion to substitute as plaintiffs in the ejectment action A.L. Bellotto and wife, A.J. Bellotto in the place and stead of Ida Lucas Alford and husband, Smith Alford. The assigned reason for the substitution, as disclosed by the motion, being that Ida Lucas Alford and husband, Smith Alford, on February 4, 1947, by a fee simple deed conveyed the described property to A.L. Bellotto and A.J. Bellotto. A copy of the deed is attached to the motion for substitution of parties plaintiffs in the ejectment suit and identified same as Exhibit "A".
Likewise, an assignment of claim and litigation was executed and delivered by the Alfords to the two Bellottos under date of January 24, 1947, and identified as plaintiffs' Exhibit "B". It is viz.:
"Know All Men By These Presents:
"That Ida Lucas Alford, joined by her husband, Smith Alford, for valuable considerations, assign unto A.L. Bellotto and A.J. Bellotto, all right, title and interest belonging to them or either of them, in and to that certain suit or cause now in litigation in the Circuit Court of Polk County, Florida, which is styled: Ida Lucas Alford and Smith Alford, her husband, Plaintiffs vs. W.S. Moore, Defendant.
"In Witness Whereof the said assignors have hereunto set their hands and seals this 24th day of January, A.D. 1947.
/s/ Lida Lucas Alford (Seal) /s/ Smith Alford (Seal)
Witnesses:
/s/ Edith Long /s/ Virginia McGinley"
On March 12, 1947, the trial Court entered an order granting the motion and by the terms thereof A.L. Bellotto and A.J. Bellotto were substituted as plaintiffs in the cause and instead of Ida Lucas Alford and Smith Alford, her husband. The substituted plaintiffs, by the same order, were allowed until the rule day in April, 1947, within which to file an amended bill of particulars, but the defendants were granted leave and authority to replead to the declaration and amended bill of particulars, as advised, on or before the rule day in May, 1947.
On April 7, 1947, the substituted plaintiffs filed their amended declaration and amended bill of particulars. Pertinent is the following language: "A.J. Bellotto and A.L. Bellotto, substituted as plaintiffs in this cause in place and stead of Ida Lucas Alford and Smith Alford, her husband, by their attorney Harry E. King, sue W.S. Moore of Dundee in an action of ejectment." The "substituted plaintiffs claim title as shown by the amended bill of particulars hereto attached and made a part hereof."
In the chain of title to the tract, supra, as reflected by the amended bill of particulars filed pursuant to the order of the Court dated April 7, 1947, are pertinent items: Item 12 set out that Ida Lucas Alford was the sole heir and only devisee of her mother, Myrtle Danley. It appears that Myrtle Danley owned the described land at the time of her death and by operation of law the land descended to her daughter, Ida Lucas Alford, an original plaintiff.
Item 13 is a deed from Ida Lucas Alford and husband to A.L. Bellotto and A.J. Bellotto. Item 14 is viz: That prior to the time the defendant named in the original declaration wrongfully took possession of the property — described in the amended declaration — the plaintiffs and their predecessors in title had been in the actual, open, visible, notorious, exclusive and continuous possession of said property, hostile to the world at large for a period of more than seven years last past, based upon the claim founded upon a written instrument therein described as being a conveyance of of said property and upon the aforesaid inheritance.
The defendant, W.S. Moore, demurred to the amended declaration on grounds: (1) No cause of action is alleged; (2) It appears that the substituted plaintiffs deraigned their alleged title through a champertous deed; (3) said substituted parties are not proper parties to bring or maintain the action. The trial Court entered an order dated October 18, 1948, sustaining the defendant's demurrer to the amended declaration but allowed counsel ten days in which to file a second amended declaration, which was filed in the cause under date of October 23, 1948.
The second amended declaration (Tr. 17-18) is substantially the same as the first amended declaration. The defendant directed a second demurrer to the second amended declaration and the grounds were: (1) the parties filing the second amended declaration are not parties to this motion; (2) it is a departure in pleading; (3) the above action abated when the Alfords executed a deed of conveyance to the two Bellottos; (4) the two Bellottos did not have any title, claim or cause of action at the time of the commencement of the action; (5) the second amended declaration is an attempt to enforce a champertous transfer. Defendant, likewise, filed a motion to strike the amended bill of particulars on various grounds and a motion for a better bill of particulars.
On pages 21 and 22 of the Transcript is an order of the lower court sustaining the above demurrer of defendant to the second amended declaration. On May 21, 1949 (Tr. 21), is an order overruling the defendant's demurrer to the second amended bill of complaint. It denied the defendant's motion to strike plaintiffs' amended bill of particulars but granted defendant's motion, which required plaintiffs to file a better bill of particulars (Tr. 21). On June 20, 1949, the plaintiffs filed their second amended bill of particulars. Another order was entered by the trial Court on September 6, 1949 (See Tr. 25). On June 16, 1949, the trial court entered a stay order (See Tr. 27).
On June 2, 1950 (Tr. 28), the following final judgment was entered: "This cause came on to be further heard on the motion of defendant to vacate certain orders and on further argument and hearing of defendant's demurrer to the second amended declaration, and counsel for plaintiffs and counsel for defendant having been heard at said argument; and it further appearing that, on April 4, 1949, the Court had entered an order sustaining said demurrer to said second amended declaration after hearing at which counsel for all parties were present and heard; and it further appearing that the two orders entered by the Court on May 23, 1949, and September 6, 1949, were inadvertently entered without any notice or opportunity to be heard having been given defendant; thereupon, upon consideration thereof it is
"Considered, Ordered and Adjudged as follows:
"1. That the orders entered by the Court on May 23 and September 6, 1949, be and the same are hereby vacated.
"2. That the demurrer to the second amended declaration herein be and the same is hereby sustained, and that the plaintiffs take nothing by their writ in this cause, and that the defendant, W.S. Moore, go hence without delay.
"Done And Ordered at Bartow, Florida, this 2nd day of June, 1950."
An appeal was taken from the aforesaid final judgment to this Court, but during the sixty-day appealable period the said W.S. Moore, defendant-appellee died. A motion to dismiss the appeal was made and granted by this Court under date of November 14, 1950 (Tr. 31-32). Smith v. Moore, Fla., 48 So.2d 754. The executor and heirs of the late W.S. Moore were made parties in the lower Court (Tr. 39-40). It is contended for various reasons that the final judgment entered below was erroneous.
It is fundamental that in actions of ejectment the plaintiff must recover on the strength of his own title and not on the weakness of the title of the defendant. The plaintiff cannot recover even as against one without title unless he shows title or prior possession. To recover possession of land in an action of ejectment against one in actual possession, the plaintiff should show title in himself and a right to the possession, or that he has been in the actual bona fide possession of the land and was ousted by the defendant. Phillips v. Lowenstein, 91 Fla. 89, 107 So. 350.
The second amended bill of particulars deraigning title into the plaintiffs (Tr. 21-25) discloses that Myrtle Danley obtained a deed to the described property during the year 1939. Title to the described property, by the last Will and Testament of Myrtle Danley, was placed in Ida Lucas Alford. Ida Lucas Alford and husband, Smith Alford, filed the ejectment suit in 1946. Section 14 of the amended bill of particulars sets out that the plaintiffs and their predecessors in title had been in the actual, open, visible, notorious, exclusive and continuous possession of said property, hostile to the world at large, for a period of more than seven years last past (or prior to February, 1946) and had rented the premises to the defendant and had collected rentals from him for the use of the property; had erected fences and caused to be erected fences on the premises; made repairs on the structures and buildings on the premises, all of which was founded on a written instrument — being a conveyance of the property by inheritance.
The Court is committed to the rule that a deed given by one to land which is in the adverse possession of another is void as against such adverse claimants. Where a conveyance is made of lands which at the time are in the adverse possession of one not a party to the deed, ejectment will not lie in the name of the grantee to such deed but only in the name of the grantor. Cox v. Partin, 148 Fla. 445, 4 So.2d 673.
The early case of Nelson v. Brush, 22 Fla. 374, illustrates the applicable rule as follows: B makes a deed to the land to D, while N is in adverse possession thereof: held that the deed is only void as to N and as against him the title remains in B, who may sue for and recover the land: that such recovery will inure to the benefit of D as the deed from B to D is valid as between them.
The record reflects contradictory orders made prior to the entry of the final judgment appealed from and it is difficult to ascertain the true intention of the trial Court at the time several of them were entered. It is safe to say that the trial Court held the second amended declaration legally insufficient, although in part it recites: "Ida Lucas Alford and Smith Alford, her husband, for the use and benefit of A.J. Bellotto and A.L. Bellotto, by their attorney Harry King, sue W.S. Moore of Dundee, Polk County, Florida, in an action in ejectment." It is true that the deed from the Alfords to the two Bellottos was executed after the institution of the ejectment suit, but the Alfords are still parties plaintiff. It appears that the trial Court, because of the confused state of the record, overlooked this important factor.
Counsel for appellees cite Jones v. Lofton, 16 Fla. 189; Paul v. Fries, 18 Fla. 573, and Carn v. Haisley, 22 Fla. 317. We are in accord with the holdings in each of these cases. Section 70.01, F.S.A., provides: Common law ejectment abolished. In actions of ejectment it shall not be necessary to have any fictitious parties to the suit, but the party plaintiff may bring his suit directly against the party in possession, or one claiming adversely.
The judgment appealed from is reversed with directions to overrule the demurrer and two motions of the defendants-appellees and fix a date for the defendants-appellees to answer the second amended declaration.
TERRELL, Acting Chief Justice, MATHEWS, J., and LEWIS, Associate Justice, concur.