Opinion
January 16, 1951. Rehearing Denied February 12, 1951.
Appeal from the Circuit Court for Broward County, George W. Tedder, J.
Saunders, Buckley O'Connell, Fort Lauderdale, for appellant.
Copeland, Therrel Baisden, Miami Beach, J.H. Mercer, Miami, Elbert B. Griffis and Rogers, Morris Griffis, Fort Lauderdale, for appellees.
Appellant, hereinafter referred to as plaintiff, brought an action in ejectment against appellees, hereinafter referred to as defendants, to prove his title and recover possession of a tract of land described as follows: Tract Sixty-one (61) of Section Eleven (11), Township Fifty (50), Range Forty-one (41) East, lying and being in the County of Broward, State of Florida, containing Ten (10) acres, more or less.
Plaintiff's deed with this description was attached to the declaration as a part of his bill of particulars. Defendants filed the usual pleas and moved to strike the bill of particulars. Their motion was granted.
Plaintiff then attempted to establish his title by declaratory decree but being foiled in this he moved for permission to amend his bill of particulars by supplementing his chain of title supported by extrinsic and other competent testimony showing that the description in his deed was valid or could be made so by legal proof, that said description has been accepted for many years, that there were no other lands the description in his deed could cover, that his lands could easily be located by said description and that there are 500,000 deeds or other instruments recorded in Broward County using the same general type of description. This motion was overruled, final judgment was entered for defendants and the plaintiff appealed.
It is not disputed that plaintiff's title was based on a deed executed in 1925, supported by chain of title from the United States and that defendants' claim was based on adverse possession, without color of title by their grantor from 1927 and a deed executed to them in 1942. A full and correct description of said land is as follows: Tract Sixty-one (61) of Section Eleven (11), Township Fifty (50), South, Range Forty-one (41) East, According to plat of the Florida Fruit Lands Company's Subdivision No. 1, recorded in Plat Book No. 2, page 17 of the Public Records of Dade County, Florida; said lands situate, lying and being in Broward County, Florida.
We think the trial court committed error in striking plaintiff's bill of particulars and in refusing him permission to amend with supporting evidence. The italicized portions of the description in the preceding paragraph was the omission from plaintiff's deed which it is contended made it fatally defective.
We do not think that such an omission is so serious that defendants' claiming by adverse possession, without color of title, can cut off the right of plaintiff to offer evidence and determine by that which of the parties have the better title. The better title determines the right to possession. We think the quoted omission in plaintiff's deed is such as may be explained and substituted by parol evidence.
Reversed.
CHAPMAN and ROBERTS, JJ., concur.
SEBRING, C.J., and HOBSON, J., concur specially.
THOMAS and ADAMS, JJ., dissent.
I agree to the judgment of reversal because I hold the view that the appellant, who was plaintiff below, should not be precluded from establishing by competent evidence the fact, if it be a fact, that his lands could easily be located by description contained in his deed and that there were no other lands which the description in his deed could cover. However, I do not believe that the plaintiff should be allowed to offer any parol evidence to supply or add anything to the description as it is written in his deed. See Sanford v. Major Dania, Inc., Fla., 43 So.2d 712. It is entirely possible that the appellant may be able to establish by competent evidence that the description in his deed is one by which the identity of the land can be established.
SEBRING, C.J., concurs.