Gambar halaman
PDF
ePub

Hogans et al. v. Carruth-Opinion of Court.

Taylor, of Duval county, to Isaiah D. Hart. To the introduction of this deed plaintiffs objected. Defendant proved the death of the witnesses; that the signatures purporting to be heirs was in their hand-writing; that what purported to be the signature of Lewis Z. Hogans was in his hand-writing; that the signature of Maria Hogans was in the hand-writing of James Dell, one of the subscribing witnesses, and that the signatures of John, Charlotte and Purnal Taylor were in the hand-writing of John Taylor; that Charlotte and Purnal Taylor could not write, and that the deed was in the handwriting of I. D. Hart, the grantee. The deed comes from the office of the Judge of the County Court of Duval county, and the Judge of that court swears that it, with a number of other ancient deeds, was brought to him in an old chest by Mrs. O. B. Hart, the widow and executor of O. B. Hart, who was the son of the grantee in the deed, I. D. Hart. The Clerk of the Circuit Court for Duval county swears that this deed with others named is "spread upon the books" of his office "in regular order and due form," and John R. Hogans, the son of Z. Hogans, testifies that his mother had stated to him years ago when he enquired concerning this land that she had given the papers concerning this land to Major Hart. I. D. Hart, the grantee in this deed, is meant by Major Hart.

The concluding or testificandum clause of the deed is: "In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written," and the seals appear upon the paper. The attestation clause is "bargained, sold, transferred and acknowledged in presents of us."

There was objection to the introduction of this deed, because the execution of the deed had not been sufficiently proved; because it did not contain within its description the lot in controversy; because the rights of Maria Hogans

Hogans et al. v. Carruth-Opinion of Court.

were not conveyed by it, and because the signature of M. Hogans was in the hand-writing of James Dell, one of the witnesses, and the signatures of John, Charlotte and Purnal Taylor were in the hand-writing of John Taylor, and there was no proof of authority in Dell or Taylor to sign the names of these parties or their adoption of said signatures.

The concluding clause of this deed asserts the execution of the deed by these parties under their hands and seals. and seals appear opposite their names.

Whatever may be the rule as to deeds not ancient, yet in an ancient deed such as this, if it appears that the name of one or more of the parties is in the hand-writing of a person then present, and not a party to the deed or in interest, and that some of the parties could not write, and there is heither charge nor evidence of fraud, the presumption is that the signature was made in the presence of the parties by virtue of an oral direction from the parties themselves, in which event as a matter of course the signatures are those of the principals themselves. (Frost vs. Deering, 21 Maine, 156; Burns vs. Lynde, 6 Allen, 309, 310; Vidian vs. Griffin, 21 Cal., 392; Kinne vs. Brooks, 9 Ired.. 219; McKay vs. Bloodgood, 9 John., 285.) The signing and sealing are therefore sufficiently established. The deed comes from the custody of the widow and executrix of the will of the grantee's son, and this as to an ancient deed coupled with the testimony of John R. Hogans to the effect that his mother, Mary Hogans, delivered the title papers to this property to I. D. Hart, his mother being one of the parties! to this and other deeds, as we subsequently will see, is sufficient to justify and require the introduction of this deed in evidence. Philips on Ev., Cow. & Hill's Notes, 4 Amer. Ed., p. 475 to 481, inc.

So far as the objection that it does not appear upon the

Hogans et al. v. Carruth—Opinion of Court.

face of the deed here proposed to be introduced that the land in controversy is embraced in it is concerned, we held, when this case was here at last term, that a party is not required to locate on the ground the calls of a deed before it is admissible as evidence. In this case any legal evidence showing possession, claim or ownership of adjoining tracts were admissible.

As to the matter of the attestation of the deed, our statute does not require any particular form of words for the attestation clause of a deed, and the attestation clause of a deed in the words: "bargained, sold, transferred and acknowledged in presents of us," where the testificandum clause is "in witness whereof the said parties of the first part have hereunto set their hands and seals the days and year first above written," other facts showing delivery being established, is sufficient. The term "acknowledged" indicates that the parties affirmed the signing and sealing to be their act before these witnesses. As to the mistake in spelling the word presence, it is entirely immaterial, for “mala grammatica non vitiat chartam," and in a deed "animus ad se omne ducit." (Walters vs. Bredin, 70 Penn. State, 235.) "The law fortunately is far from being strict in requiring any great accuracy or precision in respect to what is written so far as the rules of grammar or orthography are concerned. or as to the chirogaphy or evenness of the page or the straightness of the lines."

The description of the boundaries of the land conveyed by this deed is as follows: "All that certain tract, piece or parcel of land lying and being within the following boundaries, that is to say: bounded on the east by lands now claimed by John L. Doggett, on the north by lands. claimed by the said party of the second part, on the west by lands of the parties of the first part, (it being part of the aforesaid tract) and on the south by St. Johns river, and

Hogans et al. v. Carruth-Opinion of Court.

runs north forty chains, the second line runs west twentysix and a half chains, the third line runs south forty chains, and the fourth line runs east twenty-six and a half chains to the point of beginning, containing one hundred and six acres, more or less, it being part of a tract of land granted by the Spanish government to the widow and heirs of the said Purnal Taylor, deceased, on the 13th September, A. D. 1816, and surveyed by George I. F. Clark, SurveyorGeneral, on the 21st day of February, A. D. 1817.”

The question in this case is, does this deed embrace the lot in controversy? If it does, then plaintiffs must fail.

We have here two calls for boundary, the first being by the lands then claimed by certain parties, and the second being in chains without giving any starting or terminal point which can be ascertained without reference to ownership of adjoining lands as described in the prior part of the deed. The courses and distances enable us to denote on a plat a geometrical figure; that is all. The other description tells us it is a part of the Hogans' Grant, and gives as the boundaries by land owned by adjoining proprietors. Certain deeds were introduced in evidence by the defendant to show what the boundaries were according to the description of "lands claimed," or similar descriptions, to which the plaintiffs objected because the deeds did not contain the lot in controversy; because I. D. Hart, the grantor in ene deed, acknowledged it before himself, and while the deed purported to be executed by him as administrator no power to sell was shown, and because proof of the execution was not sufficient.

As we remarked in the opinion delivered in a previous appeal in this case at a preceding term (18th Fla.) the question here is not one of absolute ownership, but of claim. Whether, therefore, the failure to show power in Hart to sell as administrator would defeat a recovery of the land

Hogans et al. v. Carruth-Opinion of Court.

which he might claim under such a deed is not the question, nor does the void acknowledgment of the deed before himself affect the question.

As to the evidence of execution it is useless to repeat what we have said as to the proof of execution of deeds of this character. These deeds are ancient, and what has been already said upon this subject covers the questions here raised to the extent that we can reasonably conceive any importance is attached to them. These deeds were, therefore, properly admitted to show the boundaries according to description of ownership of contiguous lands.

[merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][ocr errors][ocr errors][ocr errors][merged small][merged small][merged small]

St. Jotues Awer

* indicates the lot in controversy.

A. B. C. D. indicates Hogans' Grant.

[ocr errors]

E. F. C. G. indicates area of deed of 1834 by metes and bounds in chains. H. B. indicates northern boundary of deed of 1834 as given by lands claimed. B. C. indicates like eastern boundary in deed of 1834.

The above plat shows the Hogans' Grant as given in the last survey, accepted and treated by the government of

« SebelumnyaLanjutkan »