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

the United States as authentic and official. It also shows the boundaries by abutting lands as given in the deed of 1834, made by plaintiffs' ancestors to Hart, the boundaries of the land emaraced in the deed made in 1836 by plaintiffs' ancestors to Hart, and the various other boundaries. and points and matters indicated by the testimony, which the jury had a right to act upon in reaching their conclusion.

The northern boundary of deed of 1834 is lands of the parties of the first part (plaintiffs' ancestors), and the eastern boundary of deed of 1836 is land of Isaiah D. Hart; the northern boundary is land of I. D. Hart. the western land of John W. Richard.

According to the testimony, lot 1, block 136, the lot in controversy, was embraced in these boundaries. Speaking of this matter the witness, R. N. Ellis, a surveyor, says: "I would have to find the boundaries in deed of 1834 to get a starting point to make the survey of the land in that deed, and could not make a survey of the areas called for in that deed until I found this starting point." This witness says also: "I would say lot 1, block 136, was in the boundaries given in the deed from Hogans and others to Hart of 1834," according to the boundaries by contiguous lands given in the deed of 1834. To the same effect is the testimony F. F. L'Engle, a surveyor, who had surveyed the Hogans' Grant and was familiar with the proof as to cwnership of adjacent lands. This witness states that he had surveyed the greater portion of the lines marked on a plat similar to the foregoing plat; that he had run the north and west lines of the Hogan's Grant, B. A. and A. D.; that he had run most of the eastern line, F. B. C., as near as he could run it according to abuttals in deed of 1834. The amount of land according to measurement is 106 acres, but he does not know where the starting point

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

of the land embraced in the deed of 1834 is, unless ended by the previous part of the description in the deed of 1834, and that he would have to find out where the adjoining lands of Doggett or Bellamy were to get a starting point; that he can ascertain this starting point; that he can run the forty chains north easily, which would reach the N. E. corner, F.; that he could then run the western line 261⁄2 chains, then south forty chains "into the St. Johns river;" that he could find the third line, E. G.; that the end of it is in the water, and that "there is 106 acres of area within the measurement, including the land and some water." Thus surveyed the western line would run "several hundred feet" into the St. Johns river.

The testimony shows that if the first line of Hogans' Grant is run from the southwest corner, the eastern line falls short of the river about seven or eight chains.

It is thus apparent that the deed of 1834 does not convey one hundred and six acres of land according to measurement, commencing with the eastern line, as the western line run forty chains, goes into the waters of the river several hundred feet. It is also apparent that if the western boundary is made the point of beginning, and the line is run north forty chains from the St. Johns river, that the eastern line will fall short of the bank of the river the same distance. These lines, the eastern and the western, are the ones which occasion this contention.

There is very little that is definite and certain here except that the lines as given do not embrace the quantity of land stated, and the southern terminus of the western line run forty chains is not the bank of the river St. Johns. The same discrepancies exist as to the Hogans' Grant, for the lines, as given in the original grant, do not make any allowance for the meandering of the river, while the plat, according to the original survey, shows it existed, and if the south

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

ern portion of the western boundary (D.) is made the initial point of the survey, the terminal point according to measurement would fall several chains short of the point C.

When we look to the boundaries of the deed of 1834. however, as fixed by "lands claimed" and "lands owned" according to the deeds in evidence and the testimony, the lot, of which possession is sought in this suit, falls south of the northern boundary (lands claimed by I. D. Hart) about ninety-five feet, and the evidence leaves no reasonable doubt as to what is meant by the terms "lands claimed" or “lands owned." Two surveyors testify without qualification that accepting this description the lot was embraced in the deed of plaintiffs' ancestors of 1834 to I. D. Hart, and deeds under which claim or ownership were made are in evidence.

Another fact which should not escape attention here is, that plaintiffs' ancestors in 1836, two years after their deed of 1834, fixed by their deed of 1836 the western boundary of the deed of 1834, and that boundary is extended by that deed to the point H. as marked upon the plat. In the deed of 1836, (D. A. H. G.) which gives boundaries entirely by ownership or claim, (omitting courses and distances) the eastern boundary is given as the "lands of Isaiah D. Hart," and the western boundary is given also as lands of the party of the second part (Isaiah D. Hart). The necessary consequence following this deed of 1836 between plaintiffs' ancestors and I. D. Hart is, that they themselves make the western boundary of the land embraced in the deed of 1834 as they understood it extend so far north as to embrace this lot when the line is extended 261⁄2 chains east, and the boundary of 261⁄2 chains east is not questioned.

Again in 1851, Maria Hogans, in consideration of the sum of $25, conveys all of her dower interest in the entire Ho

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

gans' Grant to I. D. Hart. It is a fair presumption that this deed was executed because of the want of formality in the other deeds executed by her during coveture to pass this interest, and it follows if this be true that her purpose in the other deeds was to convey her interest in the entire Hogans' Grant, and if so it would seem to indicate a like purpose upon the part of the other grantors to the deeds of 1834 and 1836.

These are the facts as the jury had a right to find. Did they in law justify a verdict for the defendant?

We understand the law to be that where the courses and distances in a deed do not cover the quantity of land called for, and are therefore uncertain as boundaries, and there are other boundaries given in the deed by adjoining tracts, which are ascertained and sufficiently established, the line will be extended to them, where such a course is consistent with the manifest intention of the parties. We do not propose to enter into any general discussion of the rules controlling in the matter of boundary. We confine ourselves to this case as we understand it from the testimony in the present record. Applying the rule of law as we have stated it to the facts here disclosed, we think the verdict of the jury and the judgment of the court are sustained by the evidence and the law.

We have not examined in this case the errors assigned in the order in which appellants presented them in argument. This record discloses a case in which no evidence so material that it should operate to change the verdict of the jury was improperly admitted or rejected during the trial, and according to the practice of this court if the evidence sustains the verdict, and the law is applicable to the facts clearly established sustains the judgment, the judgment must be affirmed. We regard this as a rule eminently conservative and salutary in its character, greatly

McLean v. Spratt-Syllabus.

conducive to the speedy administration of justice and the settlement of legal controversy. It should, therefore, be strictly adhered to.

The judgment is affirmed.

WM. A. MCLEAN, APPELLANT, VS. LEONIDAS W. SPRATT, APPELLEE.

1. Upon a sale of real estate at auction the agent of the vendor announces that the purchaser upon the payment of $500 cash shall be entitled to possession and future rents from a date stated. The purchaser pays the $500, the agent gives him a list of the tenants, and the purchaser treats with one of the tenants upon the basis of the relation of tenant from month to month to him as landlord, such agent acquiescing by his silence and presence in the existence of such relation. Held: That the creation of such relation of tenant from month to month in the manner stated is legal, not in conflict with the statute of frauds, and that in order to constitute an unlawful detention of possession of such property under the statute regulating the subject, the landlord must show a notice to quit conformable to the terms or to the law of the contract of tenancy or a holding over after legal demand of the paymenf of rent due.

2. A simple demand of possession is not a notice to quit, nor do the facts that the tenant failed to pay the rent but admitted his responsibility for it and promised to pay it, constitute such a legal demand as is necessary to establish an unlawful detainer under the statute.

Appeal from the Circuit Court for Duval county.

This is a proceeding by the appellee under the statute to recover possession of real estate claimed by him to be unlawfully detained or withheld by the appellant.

The other facts are sufficiently stated in the opinion.

Meek & Deans for Appellant.

Cockrell & Walker for Appellee.

4-19th Fla.

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