West v. Mayo

Hocker, J. — Mayo, tbe defendant in error, brought an action at law against W. S. West, J. P. Coffee, and H. A. Reaves as parties doing business as West, Coffee & Company, in tbe Circuit Court of Citrus County, tbe declaration containing two counts. Tbe first count alleged tbe conversion by tbe defendants of 738 pine logs. Tbe second count alleged a trespass upon tbe same lands described in tbe first count, and the cutting therefrom of a large quantity of pine timber. Damages to tbe amount of $1,500.00 are stated. Not guilty, and several other equivalent pleas were interposed. On tbe trial tbe jury found a verdict for $295.20 with interest, making a total of $371.00. Judgment was entered for this amount and costs. Tbe plaintiff introduced in evidence ■ a patent from tbe United States Government to himself, dated the 5th of August, 1890, embracing tbe lands described in tbe declaration. He introduced evidence tending to show that he bad been in possession of tbe lands from the date of the patent up to the time of trial. There was evidence tending to prove tbe number of logs removed from tbe land by tbe defendants as being tbe number, [310] stated in the declaration, and that their value was from 25 cents to 50 cents each. The jury evidently placed the value at 40 cents each. The defendant was permitted by the court to introduce in evidence a deed executed by Brown N. Mayo and wife to F. C. Thomas, Trustee, conveying the lands in question, dated the 15th of March 1893. No trust purposes are stated in the deed, and it does not appear that F. C. Thomas ever was in possession of the land; nor that he ever conveyed it to anyone,' or in any way claimed it. The defendants did not in any way connect themselves-with Thomas’ title. They introduced a number of conveyances embracing the land, possibly to show that they were not -wilful or malicious trespassers, as none of them deraign title from Mayo or Thomas. The first assignment of error argued is based on the action of the court in striking from the evidence the deed from Mayo to Thomas. We do not perceive any reversible error in this matter. It does not appear that Mayo had ever been out of possession of the property, or that Thomas ever was in possession of it, or ever in any way claimed it. Seventeen years had elapsed when the trial took place since this deed was executed. Mayo’s possession under these circumstances gave him the right to sue. Knight v. Empire Land Co., 55 Fla. 301, 45 South. Rep. 1025. This, the plaintiffs in error, admit in their brier to be the vital point in their case. A defendant in trover cannot set up title to the property in a third person unless he connects himself in some manner with that title. Skinner v. Pinney, 19 Fla. 42. An assignment of error' attacks one of the judge’s charges as assuming that the plaintiff owned the land in question. We need not investigate this question. We [311] think that the charges and instructions taken as a whole, in connection with the undisputed evidence, were not misleading and produced no injury to the defendants. Quitman Naval Stores Co. v. Conway, decided at this term; Graham v. Gill, 56 Fla. 316, 47 South Rep. 917; Hopkins v. State, 52 Fla. 39, 42 South. Rep. 52; Upchurch v. Mizell, 50 Fla. 456, 40 South. Rep. 29. The judgment below is affirmed. Whitfield, C. J., and Taylor, Shackleford and Cockrell, J. J., concur.