Palmer v. Greene , 159 Fla. 174 ( 1947 )

The facts seem to be that the Palmers (appellants-defendants) bought Lot 5 in July 1936, and were placed in possession of a piece of land which in fact extended over a portion of Lots 6 and 7 owned by the Greenes or their predecessors in title and also over a portion of Lot 8 owned by the Ownbys or their predecessors in title.

The plaintiffs-Greenes being out of possession of the north 29 feet of the land to which they held the legal paper title, brought a bill to quiet title against the Palmers who were in possession. The Palmers answered and admitted possession but stated that they had acquired title by adverse possession having taken possession of the portion of Lots 6 and 7 under their deed to Lot 5, such possession being under a claim of ownership and for more than seven years.

After having answered plaintiffs' bill the Palmers filed a cross-bill to quiet title against the Greenes and also the Ownbys. The Palmers were in possession and based their claim against the holders of the legal paper title upon seven years adverse possession under a claim of right. They had no color of title except their deed to Lot 5. Their cross-bill related to portions of Lots 6, 7 and 8, and the defendants to the cross-bill were the owners of the legal paper title.

The evidence establishes that Palmers' predecessors in title to Lot 5 were actually in possession of the land in dispute but fails to establish facts sufficient to start the commencement of the seven years adverse possession. The possession of the land in dispute by those through whom the Palmers claim was consistent with a claim of Lot 5 according to its true boundaries.

The character of possession by the Palmers may have been adequate to support a decree in their favor on the cross-bill but this leaves unsettled the period of adverse possession and also the statutory condition precedent prescribed by Chapter 19,254, Acts of 1939.

The Chancellor found that the Palmers had failed to prove that they and their predecessors in title have been in actual, continued occupation for seven years of the premises involved in this suit under a claim of title exclusive of any other right but not founded upon a written instrument or a judgment or a decree prior to the passage of Chapter 19,254, Laws of Florida, Acts of 1939, same being Section 95.18 and Section 95.19, Florida Statutes 1941.

The Legislature in 1939 amended the law as now contained in F. S. Section 95.18 F.S.A. by adding the words of said Section which we italicize to-wit:

95.18 Real actions; adverse possession without color of title requirements

"Where it shall appear that there has been an actual continued occupation for seven years of premises under a claim of title exclusive of any other right, but not founded upon a written instrument, or a judgment or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely; provided that during the period of seven years aforesaid the person so claiming adverse possession without color of title shall have within a year after entering into possession made a return of said property by proper legal description to the assessor of the county wherein situatedand has subsequently, during each year paid all taxestheretofore or thereafter levied and assessed against the same. . . ."

Sec. 95.18 F.S.A.

The Palmers claim title to portions of Lots 6, 7 and 8 only by adverse possession without color of title, i.e., only under a claim of right. Their "claim of right" commences in July, 1936, when they received a deed to Lot 5. Their predecessors in title had possession of the premises for many years prior but title by adverse possession in them has not been established by the evidence. Possession is presumed to be in subordination to the legal title, F. S. 95.13, F.S.A. which legal title is held by the Greenes and Ownbys-appellees.

Under the law as enacted in 1939, and italicized above, the Palmers were likely excused from performing those acts specified to be done within a year after going into possession since they had then been in possession for three years at the time of the enactment. The Act was intended to have prospective application only. However, a provision of the quoted section (supra) exacted of the Palmers that they pay all taxes on the land to which they seek to establish adverse possession during each year — which they have not. Such being an essential it appears that such years cannot be considered in calculating the adverse possession of the Palmers.

It not having been made to appear that the Chancellor erred, the decree is affirmed.

TERRELL, BUFORD and ADAMS, JJ., concur.

THOMAS, C. J., CHAIRMAN, J., and SMITH, Associate Justice, adhere to former opinion of May 9, 1947.