Stewart v. Mathews-Opinion of Court. of the claim of title to the half it should not have been rejected. Defendant then offered a deed from C. W. Keep and wife to Sarah A. Stewart, the defendant, dated October 6, 1875, conveying among other lands the southeast quarter of section 28. This was objected to by plaintiff on the ground. that no title was shown in Keep, and further, that the deed was not legally probated, the same being acknowledged in Marion county before a J. P. of Alachua county. The objection was sustained, the deed rejected and exception taken. This ruling was error. 1. Both parties claim from Paul McCormick. His executor conveyed to Stewart, Stewart conveyed to Keep and Keep conveyed to this defendant at least one-half of the premises. 2. Whether the deed was legally proved or acknowledged for record or not, the deed of Keep to Mrs. Stewart was good as between them. Whether the title thus conveyed was a better title than that of the plaintiff depends upon the whole case made by the contending parties. All competent evidence of title offered by either party should be considered, whether as to the whole or as to a moiety of the land, in order to find what title either party has and whose right is superior. Mathews and Thrasher testified to certain conversations with Ellis relating to the second deed made by him as executor to Stewart, and the reasons for making it, &c.; but this testimony was mere heresay, and of no value to affect the rights of these parties. Ellis was examined as a witness, and was not inquired of as to the matters testified of by Mathews and Thrasher. The rights of the respective parties as they appear in the record may be stated as follows: Paul McCormick had title in 1858 to the land in controversy, and conveyed it by deed to Abner H. McCormick, by deed not recorded until Stewart v. Mathews-Opinion of Court. December 14, 1878. There is no evidence that Abner was ever in the actual occupation of it. Sarah K. Reddick and her husband conveyed it to plaintiff, Mathews, February 3, 1875, by deed, recorded March 4. 1875. Sarah K. Reddick is the daughter of Abner H. McCormick, but whether she is the sole heir is not shown. But assuming that she is the sole heir, she conveyed the land to plaintiff, and thus plaintiff's title is made out, and he is entitled to recover unless this title is overcome by the proofs of the defendant offered at the trial. Paul McCormick's executor sold and conveyed December 21, 1874, to R. A. Stewart by deed, executed under a power contained in the will, the south half of this property. This deed was proved for record before the clerk of Marion county December 21, 1874, and filed for record on the same day. R. A. Stewart conveyed the same south half of this property by deed dated December 22, 1874, recorded March 3, 1875, to C. W. Keep. C. W. Keep conveyed to S. A. Stewart, defendant, by deed dated October 6, 1875, the southeast quarter of section 28. This includes the same south half of the property in question. (It does not appear that more than the said south half had been conveyed to Keep, and therefore no more was lawfully conveyed to Mrs. Stewart by his deed.) The second deed by Ellis, executor, &c., of Paul McCormick, conveyed to R. A. Stewart October 5, 1875, the S. W. quarter of the S. E. quarter of section 28, T. 12, R. 21, in Marion county. This covers the entire land in contro versy. The testimony shows that R. A. Stewart went into actual possession of all the land in controversy conveyed by this deed, at the date of the first deed to him by the executor, December, 1874, and his widow, the defendant, is still in possession. Stewart v. Mathews-Opinion of Court. The deed of Paul McCormick to Abner McCormick was not recorded until December 14, 1878, long after both the deeds of McCormick's executor to R. A. Stewart were executed, and Stewart went into possession. There is no testimony whatever that any one had actual possession of the land in question up to the time Stewart purchased. There is no testimony that R. A. Stewart had any notice of the conveyance by Paul to Abner H. McCormick, actual or constructive; nor that the purchase was not made in good faith and for a valuable consideration. The act of November 15, 1828, declares that no conveyance of real property shall be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same shall be recorded. Upon the case presented, including the conveyances offered and rejected but which should have been considered, the title deeds exhibited by the defendant had transferred the legal title to the whole of the land sued for to Richard A. Stewart as a purchaser for a valuable consideration, long before the record of the deed to Abner H. McCormick, and before Stewart had any actual or constructive notice of Abner's interest or the interest of his heirs. R. A. Stewart conveyed one-half the property to Keep, and Keep conveyed the same one-half to Mrs. Stewart, the defendant, all before the recording of the deed from Paul to Abner H. McCormick. As the case here stands, therefore, Mrs. Stewart has title to the south half of the land in controversy, and it is not apparent what title the plaintiff has to any portion of it. In the examination and consideration of this case we have not had recourse to the "bill of exceptions" in the record, deeming it doubtful whether it was presented to the referee and signed by him in due time, but we have Caro v. The Pensacola City Co. et al.-Syllabus. considered the record duly made and filed by the referee, which contains all the evidence, exceptions and proceedings in the case and is properly before the court as the record of the trial. Const. Art. VI, S. 17. The judgment is reversed and a new trial ordered. A petition for a rehearing filed by appellee was denied. A. V. CARO VS. THE PENSACOLA CITY COMPANY ET. AL. 1. Where the right to the possession of and the title to land is established by an action at law after vexatious and continued litigation a court of equity has jurisdiction to declare the right and to protect it by a perpetual injunction; and threatened irreparable injury is not a necessary element of the equity. 2. Where there is a peculiar state of property in that it is a large tract of land adjoining a growing city and there are a large number of persons claiming possession and title from the same source as against one or more persons claiming title from the same source, equity will interfere in behalf of those in possession to declare the right and will enforce it by a perpetual injunction. This without the prior establishment of the right at law and without proof of threatened irreparable injury. 3. To the extent that there is an actual occupation of land, their possession as a fact whether rightful or wrongful is fixed. Where, however, there is no actual occupancy or such possession as the law determines to be adverse, the law casts the possession with the legal title. 4. Although a temporary injunction may be erroneously awarded upon the bill yet if it is permitted to stand until the hearing, it will then be sustained to the extent equity appears and upon appeal the decree will be affirmed to that extent without regard to the preliminary injunction. 5. A suit cannot be instituted against the agent of a person, the service be perfected upon the agent alone, and a decree be made binding upon the principal. Caro v. The Pensacola City Co. et al.-Statement of Case. 6. Where the bill and evidence discloses that there are persons, not made parties, claiming rights in the property, they cannot be bound by the decree, no matter what may be the allegations of the bill or the evidence as to the nature of their claims. 7. The presumption is that the grantee in a deed or other conveyance of property had the capacity to acquire property, and where a defendant alleges in his answer as matter of defense that such capacity was wanting, the burden of proof is upon him to show it. 8. While the rule as to making up a transcript of the record requires the Clerk of the Circuit Court not to copy therein any paper as used in evidence upon the hearing unless so noted by the Judge, still, the paper, if so used, becomes ipso facto a part of the record, and whereupon certiorari such paper is returned to this court endorsed as used in evidence by the Judge, such endorsement being made subsequent to the hearing, the paper will be considered. A violation of such rule cannot result either in an affirmance or reversal of a decree if it appears that the paper was in fact used. The failure of the party offering the paper in evidence to obtain such action by the Judge may be visited by an infliction of costs. Appeal from the Circuit Court for Escambia county. The bill is brought by a corporation known as the Pensacola City Company in behalf of itself and those claiming title under it by purchase and conveyance, some of whom are named, against A. V. Caro, "claiming to be an heir of Gabriel Rivas and agent for other heirs." Plaintiff alleges that about the year 1806 Gabriel Rivas became possessed in fee of a grant from the Spanish Crown of a tract of land in the vicinity of Pensacola known as the Chabeau tract and containing about 300 arpents; that said Rivas about the year 1808 died, seised and possessed of said tract; that after his death upon the petition of his temporary executor, Eugenio Antonio Sierra, the land was sold at public outcry under an order of the Spanish tribunal, and that it was purchased by Gregorio Caro, and that by subsequent mesne conveyances the said tract was acquired by the Pensacola City Company, then a joint stock association, under |