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Groover et al. v. Coffee-Opinion of Court.

county for a long period from a date anterior to the making of surveys by the United States.

The grant by Georgia was, at least, a "grant by a govcrnment de facto of parts of a disputed territory in its possession, and is valid against the State which had the right,' and "the rights of the inhabitants to property are respected and sacred." 12 Pet., 748.

The case is analogous to that of an adverse possession by one having color of title, and although we do not assert that a right by prescription or under acts of limitation is good against the sovereign power, yet the title of the United States will not prevail, when asserted merely by production of its patent, against an antecedent right.

"Neither the law of nations or the faith of the United States would justify the Legislature in authorizing these boards [the Commissioners appointed to ascertain the validity and location of grants of land claimed under the Spanish authorities in Florida] to annul pre-existing titles, which might consequently be asserted in the ordinary courts of the country, against any grantee of the American government." U. S. vs. Clarke, 8 Pet., 436, 445, opinion by Marshall, C. J.

That the right of this grantee under the Georgia patent is superior to that of this grantee of the United States, is a proposition clearly shown in the before mentioned cases, decided by the highest tribunal in the land. The Congress having sovereign legislative power in the matter of the public lands, has never sought to annul these grants made by Georgia, but on the contrary has expressly recognized them.

We are entirely satisfied of the justice of our conclusion. that in the case made by the record before us the right is with the appellants.

The judgment is reversed and a new trial awarded.

Hogans et al. v. Carruth-Syllabus.

JOHN R. HOGANS ET AL., Appellants, vs. GEORGE R. CARRUTH, APPELLEE.

1. A plaintiff in ejectment cannot recover as against one having possession without title by proving title in a third person.

2. Right to possession is an incident to legal title, and is good against a naked possession unaccompanied by claim of title.

3. A defendant in possession will defeat a recovery by plaintiff by showing title in another person.

4. 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 lines will be extended to them where such a course is consistent with the manifest intention of the parties.

5. If, as to an ancient deed coming from the possession of the heirs of the grantee, it appears that the names of one or more of the grantors, who could not write, is in the hand-writing of a person then present, and not a party to the deed or in interest, in the absence of evidence of fraud, the presumption is that the signatures were made in the presence of the parties by virtue of an oral direction from them, in which event the signatures are those of the parties as principals.

6. Proof of the hand-writing of witnesses to an ancient deed, they being dead, the deed coming from the heirs of the grantee, and having been spread upon the county records in regular order and in due form, is sufficient proof of execution and delivery.

7. Under our statute the attestation of a deed in the words “bargained, sold, transferred and acknowledged in presence 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 day and year first above written," other facts showing delivery being established, is sufficient.

Appeal from the Circuit Court for Duval county.
The facts of the case are stated in the opinion.

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

C. P. Cooper & J. C. Cooper and C. L. Robinson for Appellants.

Cockrell & Walker for Appellee.

MR. JUSTICE WESTCOTT delivered the opinion of the

court.

This is an action of ejectment by appellants against appellee. Taking a general view of the appellants' case as developed by their testimony in this record and discussed in their briefs, it may be divided into two parts: First, a claim that the title was in their ancestors, and hence their right to recover; second, that the title was in the United States, or in Charles F. Smith, who claims through the State of Florida and the Trustees of some railroad Company. The second ground may be disposed of by simply stating that proof that the title is not in the plaintiffs but in somebody else, gives no claim to the land to the plaintiffs as against Carruth, even though he may be a mere squatter. It would be a strange rule indeed that would enable a party to dispossess another by proving title in a third person, thus making him a general trustee with legal title for every person having a right to the possession of lands held by all parties having no paper title thereto. In this aspect of the testimony the verdict of the jury was correct. We cannot think, however, that this defense was seriously insisted upon.

This case was before this court at January Term, A. D. 1882, [18 Fla., 587,] and by reference to the opinion rendered therein granting a new trial, a statement of the facts of the case, so far as necessary to disclose the principles of law upon which each party relied, is concerned, will be found.

Plaintiffs, Hogans' heirs and heirs of Purnal Taylor.

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

sought to prove legal title in themselves, claiming the right to possession incident to legal title. Defendant, while not endeavoring to establish adverse possession under color or claim of title sufficient to limit the action and thus defeat plaintiffs' right of action against him, relied upon his possession and the fact which he asserted that the legal title of plaintiffs' ancestors had passed from them to Isaiah D. Hart, and as a consequence that the right of possession incident to legal title was in him or those claiming through him by descent or purchase. This is the question involved in this case, which case is here upon exceptions taken by plaintiffs upon the trial of the cause and upon motion for new trial, the verdict and judgment being against them in the Circuit Court.

It is thus apparent that it is admitted by appellants and appellee that the title of plaintiffs' ancestors was good. It also results necessarily that the only question here involved is, did the title pass from plaintiffs' ancestors. Ascertaining the nature of the title of plaintiffs' ancestors is therefore material to the determination of what passed to their ancestors' alleged grantee, Isaiah D. Hart. This title is as follows: Upon a hearing of Zachariah Hogans in behalf of himself and wife, late Maria Suarez, widow of Purnal Taylor, by the Commissioners appointed by the United States to ascertain claims and titles to lands in East Florida, the claimant produced in evidence "a title of absolute property from the Spanish authorities, dated September 13, 1816, to his wife as widow of Purnal Taylor, deceased, with a certified plat for two hundred acres of land, "and the claim was by said Commissioners confirmed to him and his heirs." This plat which accompanies the memorial to the Commissioners was made by Don George I. T. Clark, Lieutenant of the local militia of St. Augustine, Florida,

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

and Surveyor-General appointed by the government of the said city and province. The grant as shown by this plat thus surveyed and confirmed is thus:

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AMERICAN STATE PAPERS, FOURTH VOL., P. 171.

It is admitted by the plaintiffs and defendant that the lot in controversy here is embraced in this grant. It is distant from the river St. Johns in a direct line about four feet less than 44 chains, and is about 95 feet from the north line of the grant. This is the testimony of plaintiffs' witness, R. N. Ellis.

The deed by which defendant claims that plaintiffs' ancestors parted with their title is dated the 26th day of May, A. D. 1834. It is made by Lewis Z. Hogans and his wife, Maria, formerly Maria Taylor, and widow of Purnal Taylor, deceased, John Taylor, Charlotte Taylor and Purnal

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