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granted against the payment of any tax that may be illegal, or illegally or irregularly assessed, until payment be made of the legal portion that may be due. The cases referred to do not sustain the position that a sale for taxes, a part of which is legal and a part illegal, is good. There is a distinction between such a case and where relief is asked against an assessment, a part of which is good, and it can be separated from the bad. Where this can be done, relief will be granted only for the illegal part on condition that the legal tax be paid. But, where a sale has been made for both good and bad, there is no way of apportioning the property sold, to the good or bad portion of the tax, and the entire sale is void. See authorities supra.

The chancellor decreed the cancellation of the tax deed obtained by Graham & Hubbell, and the conveyance executed by them to the lands embraced in the tax deed, upon condition that appellee pay the taxes on the lands for 1884 and 1885, and all subsequent taxes paid by the purchasers under the tax sale. Counsel for appellants insist that the court should have decreed the payment of the amount of purchase money paid by the purchasers for the lands, instead of the taxes expended on the same. It is not claimed that the amount required to be paid by appellee on account of taxes on the lands was not sufficient to cover all that had been paid by the holders of deeds under the tax sale, but the point insisted on is that these purchasers should be made whole by receiving back all the purchase money they paid out on account of the land. There is no authority for this position. A tax purchaser buys under the operation of the rule caveat emptor, and, at common law, gets nothing unless he secures the land itself. Judge Cooley says: "He takes all the risks of his purchase, and, if he finds in any case that he has secured neither the title he bid for nor any equitable claim against the owner, the state may, if it see fit, make reparation itself; but it has no more authority to compel the owner of the land to do so than to exercise the like compulsion against any other person." Const. Lim. pp. 475, 476, 553. Such a purchaser is not, therefore, a bona fide purchaser in the strict technical sense of the term as understood in the law. Provision has been made requiring the owner, upon recovering the land, under certain conditions, to refund the taxes that have been paid on the same by the tax claimant, but nothing beyond this has been provided for such purchaser as a claim against the landowner.

The distribution of the money required to be paid into the registry of the court by the complainant, on account of taxes paid by defendants subsequent to the tax sale, was the subject of further action on the part of the court, and the rights of the respective claimants thereto can be protected.

After answers filed by defendants in the circuit court, the bill was dismissed by order

of the clerk on following rule day for want of replication, and on petition to the judge this order was vacated, and complainant allowed to reply. Subsequently, leave was granted to complainant to withdraw its replication and amend its bill; which was done, and the cause proceeded on the amended bill. An order extending the time for taking testimony was also granted on application of complainant. The ground for extending the time for taking testimony was stated to be on account of an epidemic of yellow fever prevailing in the city where complainant's solicitors resided. The orders of the court referred to are assigned as error here, but they relate to matters resting in the sound discretion of the court, and, unless it appears that such discretion has been abused, the action of the court will not be reversed. There is nothing in the record to show an abuse of discretion in making the orders complained of, and hence the case should not be reversed on account of them.

The decree is reversed, with directions to the court to ascertain, in accordance with its practice, what portions of the lands were occupied in section 31, township 1 S., range 15 E., section 5, township 1 N., range 16 E., and in township 1 N., range 15 E.; and that, upon the ascertainment of this, a final decree be entered in accordance with this opinion. Decree to be entered accordingly.

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1. In the sale of land in sections or subdivisions thereof, including lots, according to the government survey, the survey as actually made controls. It is the survey as it was actually run on the ground that governs, if the monuments, corners, or lines actually established can be located or proved. Courses and distances yield to such corners or lines so long as the latter can be located, and for the reason that the latter are the fact or truth of the survey as it was actually made, while the former are but the description of the act done, and, when inaccurate, they cannot change the fact.

2. While it is true that the title to real estate cannot be transferred by verbal agreement, yet, where the boundary between contiguous lands is uncertain or disputed, the owners of such lands may agree upon a certain line as the permanent boundary line; and, where the agreement is followed by actual occupation according to such line as the boundary, the line will be binding upon them and their successors in title as the boundary. The line becomes binding for the reason that the proprietors have by such consent and conduct agreed permanently upon the limits or extent of their respective lands or property.

3. In cases of mistake as to true line between adjoining lands, the real test as to whether or not a title will be acquired by a holding for the period of seven years is the intention of the party holding beyond the true line. If such occupation is by mere mistake, and with no intention upon the part of the occupant to claim as his own land which does not belong to him, but he intends to claim only to the true line,

wherever it may be, the holding is not adverse. If, however, the occupant takes possession believing the land to be his own up to the mistaken line, and claiming title to it, and so holds, the holding is adverse. The intent to claim title up to the line is an indispensable element of adverse holding. The claim of right must be as broad as the possession. Simple acquiescence, or lying by, without objection, for the statutory period, in case of such adverse holding, will bind the party so lying by to the line, though not the true line.

4. It is improper to ask a party to an action of ejectment, testifying in his own behalf, if he had been in actual, open, and notorious possession of the locus in quo. The question calls merely for the opinion of the witness on an issue which it is the province of the jury to settle, subject to any proper instructions from the court as to the law of the case.

5. When an improper question is excluded by the trial judge, any inaccuracy in the objection on which it was excluded imparts no merit to the question, nor any error to the ruling.

6. The exclusion on an erroneous ground of a question asked a witness becomes entirely immaterial when the bill of exceptions shows that he has, without objection, and both before and subsequent to such exclusion, testified fully as to the point covered by the question.

7. It is not error to exclude a question put to a party to an ejectment suit, testifying in his own behalf, to the effect whether or not he had ever admitted to the plaintiff or to any one else that the land in dispute did not belong to him. Whatever in the nature of such an admission may have passed between the defendant and plaintiff, or the former and any one else, was admissible to be proved by either party in the proper way, and whatever may have been testified to by the plaintiff or any other witness as having so passed could have been denied by the defendant, or explained by him according to his recollection of what, if anything, had passed; which course, the record shows, was pursued by the parties.

8. In an action of ejectment the defendant had testified that the plaintiff purchased the lot claimed by the latter from Mrs. T., and that he (the witness) knew her husband, and was then asked if he had ever had a conversation with the husband in reference to the boundary line between plaintiff's and defendant's lots, and, on objection being made by the plaintiff on the ground that Mrs. T. could not be bound by a conversation between her husband and another, the court excluded the question. Held error, as the conversation may have tended to show an intention upon the part of defendant to claim as his own the land up to the line to which he held, exclusive of any other right, and independent of such line being the true line.

9. A party to an action of ejectment may, in testifying, simply answer whether or not he has any knowledge that any objection was made by a deceased predecessor in title of the opposite party to a stated line as the boundary line between adjoining lots. Whether or not, or under what circumstances, he can do more, not presented for decision.

10. The expression, "under claim of title, exclusive of all other rights," used in a charge in an action of ejectment, is tantamount to that of "under claim of title, exclusive of any other right," to be found in sections 1290 and 1291, Rev. St.

11. The expression, "the plaintiff having first established his title by sufficient record evidence," used in a charge to the jury, held, in view of the connection in which it appeared, not to have been intended by the judge to declare that the plaintiff had as a matter of fact so established his title, but that the judge's purpose and meaning were that the onus of proving adverse possession as a defense would not arise until the plaintiff had established his title in the

manner mentioned. The expression, being calculated, under some circumstances, to mislead, is not commended.

12. Where two parties to an action of ejectment had become the owners in fee of adjoining lots of land, and when they came into possession there had not been established a true boundary between them, and there had not been such an adverse holding by the defendant as was necessary to perfect his right under the statute, and they then agree to have the true boundary established by a survey, and to abide by such survey, it may be inferred by the jury that the defendant's claim or holding was only intended to be to the true line, wherever it might be, when legally established by proper methods.

13. The term "notorious," sometimes used in defining adverse possession, means that the possession or character of the holding must, in its nature, possess such elements of notoriety that the owner may be presumed to have notice of it and of its extent. To charge a jury that the adverse holding must be asserted at all times and in all places wherever necessary to make such claim known and understood, is at least calculated to mislead a jury by leaving it to them to decide at what times and places it is necessary to make such claim generally known and understood, and is improper.

14. A nonconsenting owner will not be bound by the agreement of other owners as to a boundary line between coterminous tracts of land, nor will any stranger thereto who may claim under such nonconsenting owner. However, should a consenting owner afterwards become the sole owner of the entire tract in which he was interested, or of a distinct part thereof, and continue to recognize the boundary line previously agreed to and acted upon by him and the owner of the adjoining tract, such line would be binding on him to the extent of his several ownership.

15. It is not necessary that an agreement to settle an uncertain or disputed boundary shall be made after the line has been fixed. Parties may agree orally to have an uncertain or disputed line run, and that it shall be the controlÎing line; and if they afterwards treat it as the permanent dividing line by improving up to it, or otherwise, they will be confined to that line.

16. An intimation by the trial judge, in charging the jury, that the conversations of the defendant, as to his possession being adverse, have not been consistent, is improper.

17. A mere agreement between owners of contiguous lands to employ a common agent or surveyor to run a line and set up boundaries between two adjoining properties, where the dividing line is susceptible of being correctly located, will not estop either party, or the grantees of either, from showing an error in such line.

18. A possession by one coterminous owner may have been taken purely by mistake, but may have been held afterwards adversely to any right of the adjoining proprietor, or any other person, intentionally, avowedly, openly, and continuously. Where, at the time of a conveyance, the holding or possession was by mistake, and without intention to claim independ ently of the correctness or error of the line held up to, the conveyance will not be void, and for the reason that the holding is not adverse. Where the holding is with the intention to claim the land adversely, independent of the correctness or error of the boundary line, and the claim of title and the possession are of a character to render the possession adverse to the true title, within the meaning of the statute of limitations. (§§ 1290, 1291, Rev. St.,) a conveyance by the disseisee would be void as against the disseisor as to such of the land as was so occupied at the time of the conveyance.

19. Where the refusal of the trial judge to give instructions requested is assigned as error, the statement in a motion for a new trial, as embodied in the bill of exceptions, to the effect

that the court erred in refusing to give such in- | 1884. According to the position taken by structions, is not proper evidence that they were duly presented to the judge on the trial, and such instructions cannot be considered by the appellate court.

(Syllabus by the Court.)

Appeal from circuit court, Hillsborough county; G. A. Hanson, Judge.

Action in ejectment by William A. Morrison against James M. Watrous. There was judgment for plaintiff, and defendant appeals. Reversed.

J. B. Wall, for appellant. H. C. MacfarAane and Sparkman & Sparkman, for appellee.

RANEY, C. J. This is an action of ejectment, instituted June 22, 1885, (Rev. St. § 1282,) by Morrison against Watrous, and in which the controversy is as to the boundary line between lots 1 and 2, township 29, range 18, S. and E., such lots being in Hillsborough county, and riparian to Hillsborough bay, now frequently, if not usually, called Tampa bay. Morrison deraigns title to lot 1 from the trustees of the internal improvement fund of Florida, who conveyed it in April, 1875, to Mrs. Sarah C. Taylor, she being the wife of John M. Taylor. Afterwards, on March 14, 1876, Mrs. Taylor and her husband conveyed an undivided interest therein to James E. Lipscomb, who, according to the testimony of Mr. Taylor, was interested originally to this extent in the purchase from such trustees; and subsequently Mrs. Taylor and Mr. Lipscomb made partition of the lot between themselves, she taking the southern portion, containing 33 acres, more or less, and he the remainder, or northern, portion of the lot; such northern portion having a western boundary of 13 chains, and containing 40 acres, more or less; the deed to her bearing date June 18, 1877, and that to him the 22d day of the same month. On April 16, 1878, Lipscomb and wife conveyed the former's portion to Morrison, and on the 10th day of October following Taylor and wife conveyed Mrs. Taylor's portion to him.

Watrous deraigns title to lot 2 from the United States, in this wise: Harriet C. Chase conveyed by deed dated December 5, 1875, with covenants of general warranty, to Spranger and Lang, and they on March 1, 1876, conveyed to Watrous by deed containing similar covenants; and on July 13, 1885, a patent to Harriet C. Chase, widow of Samuel C. Chase, for the land, was issued by the United States, it reciting that she had paid for the land under the act of congress of April 24, 1820.

The locus in quo which Morrison sues to recover is a piece of land seeming to be nearly rectangular in shape. and containing 4.97 acres. According to Morrison's contention, it is a part of lot 1, lying in the extreme western part thereof, and extending the whole length of the lot, north and south; he relying on a survey made by C. E. Worth in July,

Watrous, the land contended for is in the extreme eastern part of lot 2, extending the whole length thereof, north and south, he relying more particularly on a survey made by W. F. White in the year 1876. Watrous claims to have been in adverse possession up to the White line since 1878; Morrison, on the contrary, contending that whatever possession Watrous had was not adverse to Morrison, or to the title under which he claims. The verdict was for the plaintiff, but without mesne profits. Watrous has appealed from the judgment.

In the sale of lands in sections, or subdivisions thereof, including lots, according to the government survey, the survey as actually made controls. Miller v. White, 23 Fla. 301, 2 South. 614; Liddon v. Hodnett, 22 Fla. 442. It is the survey as it was actually run on the ground that governs, if the monuments, corners, or lines actually established can be located or proved. Courses and distances yield to such corners and lines so long as the latter can be located, and for the reason that the latter are the fact or truth of the survey as it was actually made, while the former are but descriptions of the act done, and, when inaccurate, they cannot change the fact. McClintock v. Rogers, 11 Ill. 279; Yates v. Shaw, 24 Ill. 367; Bauer v. Gottmanhausen, 65 Ill. 499; Kincaid y. Dormey, 47 Mo. 337; Major's Heirs v. Rice, 57 Mo. 384; Willis v. Swartz, 28 Pa. St. 413; Riley v. Griffin, 16 Ga. 141.

While it is true that the title to real estate cannot be transferred by verbal agreement, yet, where the boundary between contiguous lands is uncertain or disputed, the owners of such lands may agree upon a certain line as the permanent boundary line; and, where the agreement is followed by actual occupation according to such line as the boundary, the line will be binding upon them, and their successors in title, as the boundary. The line becomes binding, not upon the principle that the title to real estate can be passed by parol, but for the reason that the proprietors have by such consent and conduct agreed permanently upon the limits or the extent of their respective lands or property. Crowell v. Maughs, 2 Gilman, 419; Yates v. Shaw, 24 Ill. 367; Cutler v. Callison, 72 Ill. 113; Kerr v. Hitt, 75 Ill. 51; Kincaid v. Dormey, 47 Mo. 337; Major's Heirs v. Rice, 57 Mo. 384; Turner v. Baker, 64 Mo. 218; Jackson v. McConnell, 19 Wend. 174; Acton v. Dooley, 74 Mo. 63; Jackson v. Van Cortlandt, 11 Johns. 123; Rockwell v. Adams. 7 Cow. 761; Kip v. Norton, 12 Wend. 127; Vosburgh v. Teator, 32 N. Y. 561; Brown v. Caldwell, 10 Serg. & R. 114; Kellum v. Smith, 65 Pa. St. 86; Burrell v. Burrell, 11 Mass. 294; Hoxey v. Clay, 20 Tex. 582; Clark v. Hulsey, 54 Ga. 608; Riley v. Griffin, 16 Ga. 141; Sawyer v. Fellows, 6 N. H. 107; Orr v. Hadley, 36 N. H. 575; Houston's Heirs v. Matthews, 1 Yerg. 115; Jamison v. Petit, & Bush,

669; Jordan v. Deaton, 23 Ark. 704; Boyd's Lessee v. Graves, 4 Wheat. 513.

In Yates v. Shaw, supra, it is said: In all matters of uncertainty and dispute the parties may, without doubt, compromise and end the dispute; and they may as certainly fix by agreement the boundary lines separating their lands as other disputes. And when they have thus agreed upon the position of such boundary, and have acted upon it as the true line, they should be estopped from asserting another and different line. Slight acts, which may be construed into such an agreement, should not, however, be held to conclude the parties. To have that effect they should be clear and satisfactory, and not doubtful and equivocal in their character. When the agreement of the parties to adopt a particular boundary is shown, and possession is taken and held according to such agreement, the parties are estopped to dispute that as the true boundary; and when the fact is satisfactorily established it is sufficient. And while it may be true that it does not alter or change the original location of such line, still it must be regarded as the true line, and the parties are concluded from disputing it. If it was proved that the McFadden line was by agreement adopted and acted upon as the boundary, and that the parties, in pursuance of that agreement, erected fences or hedges on that line, and took possession in conformity to it, they are now concluded from denying that it was properly and truly located. In Cutler v. Callison, decided in 1874, where the parties agreed in 1868 upon the line where an old fence stood as the true line, and agreed to set out a hedge upon it, and one of the parties furnished the plants and the other set them out, and there was also evidence of the admission, made three years before the trial in the lower court, by the recusant party of the agreement, but he claimed there was a further understanding that if the hedge did not turn out to be on the true line they were to sell and buy, as the case might be, to come to the hedge, it was said that the courts always look with favor upon the adjustment of controverted matters of this character by agreement of the parties in interest, and when an agreement to establish a boundary line is fairly and clearly made, and possession held according to the line so agreed on, no reason is perceived why such an agreement should not be conclusive.

In Clark v. Hulsey, it was held that if parties, or those under whom they claim, agreed upon a certain line between their tracts, and the plaintiff acted upon that agreement, and built his fence there, with the knowledge and consent of the defendant, he will not be allowed afterwards to repudiate that agreement, and claim a different line, whatever may have been his legal rights independent thereof.

The authorities do not fix upon any particular length of possession under the agree

ment as essential. In Hoxey v. Clay, the period intervening between the agreement and occupation and the commencement of the action in hostility to the agreed line was very short, the agreement being in the summer of 1854, and the action having been commenced in September of the same year, while in another case the practical recognition of the line had continued as long as 30 years. It is expressly decided, and, in the nature of things, must be, that occupation for the period required by the statute of limitations to bar a recovery upon the true title is not necessary. Smith v. Hamilton, 20 Mich. 433. Many other cases are conclusive of the correctness of this view. It is sufficient if the conduct of the parties shows a settled recognition of the line covered by the agreement as the permanent boundary between their lands.

Where the owners are not uncertain as to the true boundary, the statute of frauds applies, and the doctrine announced above is inapplicable. Nichol v. Lytle's Lessee, 4 Yerg. 456; Jackson v. Douglas, 8 Johns. 286; Vosburgh v. Teator, supra; Terry v. Chandler, 16 N. Y. 354. Still it seems, though we do not say it is applicable here, that the acquiescence in an actual location of a line may be of such a nature and of such continuation as to be evidence of an express agreement. Rockwell v. Adams, 7 Cow. 761; Kip v. Norton, 12 Wend. 127; Jordan v. Deaton, supra; Jackson v. McConnell, 19 Wend. 175.

Another principle coming within the discussion of this case is that, in cases of mistake as to the true line between adjoining lands, the real test as to whether or not a title will be acquired by a holding for the period of seven years is the intention of the person holding beyond the true line. If such occupation is by mere mistake, and with no intention upon the part of the occupant to claim as his own land which does not really belong to him, but he intends to claim only to the true line, wherever it may be, the holding is not adverse. If, however, the occupant takes possession, believing the land to be his own up to the mistaken line, and claiming title to it, and so holds, the holding is adverse. The intent to claim title up to the line is an indispensable element of adverse holding. The claim of right must be as broad as the possession. Simple acquiescence, or lying by, without objection, for the statutory period, in case of such adverse holding, will bind the party so lying by to the line, though not the true line. Liddon v. Hodnett, 22 Fla. 442.

The basis of the first assignment of error is as follows: The defendant, when testifying in his own behalf, was asked if he had been in actual, open, and notorious possession of the disputed piece of land since the White survey was made, and the plaintiff objected on the ground that it was purely a question of law. That the question was al together improper, and the action of the

judge, which resulted in not permitting it to be answered, right, is clear. The question called for the mere opinion of the defendant on a material issue of fact, presented by the pleadings and evidence, which issue it was the province of the jury to settle, subject to any proper instructions from the court as to the law. The inaccuracy of the objection did not impart any merit to the question, or any error to the ruling.

The second assignment is founded upon the court's having excluded a question propounded to defendant in his own behalf, to the effect whether or not he was claiming the disputed piece of property as his own property at the time Mr. Morrison purchased lot 1. Plaintiff's objection was that the witness was "left to make a specification on his own account." We fail to see the merit of the objection. The particular purpose of the question, in view of the testimony the defendant had given as to his possession, was to bring out more fully the fact that he was not only claiming the property as his own, and not as subject to Morrison, but was doing so at the time Morrison purchased lot 1. As against the objection made, the question was not improper. However, it is proper to say that we deem this an immaterial error, in view of the fact that his testimony, given both before and after this ruling, and without objection, shows, as far as any answer to this question could show, that Watrous was claiming the property as his own at the time stated. Had the objection been that the question was leading, it would have been well made. If there was error in the ruling, it is clearly immaterial, as it would be also for the reason, if we could consider a pencil note in the bill of exceptions, to the effect that the plaintiff withdrew all further objection to questions as to the intention of the defendant.

The defendant was also asked in his own behalf if he had ever admitted to Mr. Morrison, or to any one else, that the land did not belong to defendant, and the objection that the question was leading was sustained. Whether or not the defendant had ever admitted to any one that the land did not belong to him was not a question for his decision, and there was no error in rejecting the question, whether it be leading or not. Whatever in the nature of such an admission that may have passed between the defendant and the plaintiff, or the former and any one else, was admissible to be proved by either party in the proper way; and whatever may have been testified to by the plaintiff, or any other witness, as having so passed, could have been denied by the defendant, or explained by him by a statement of his recollection of what, if anything, had passed; but his opinion of whether or not it constituted an admission was properly excluded from the jury, and the fact is that the bill of exceptions shows that this course was pursued by all parties to the fullest extent, and

consequently, had the question been allowed, we are very much disposed to think that a negative answer would be deemed immaterial to the plaintiff, were he appellant here, and assigning it, as error without injury.

The defendant had testified that Morrison purchased lot 1 from Mrs. Taylor, and that he knew her husband, John M. Taylor, and was then asked if he ever had a conversation with the latter in reference to the boundary line between these lots. To this question plaintiff objected on the ground that Mrs. Taylor could not be bound by any conversation betweeen her husband and any other person, and the judge sustained the objection. This ruling was erroneous. It may have been that the conversation would have tended to show an intention upon the part of Watrous to claim the land up to the White line as his own, exclusive of any other right, and independent of the fact of it being the true line; or, in other words, to establish an adverse possession against Morrison and his predecessors in title. Liddon v. Hodnett, 22 Fla. 442. It was not material that the conversation should be binding on Mrs. Taylor, or that there should have been any conversation or agreement with her, to give to Watrous' possession a character adverse to any rights of even Mrs. Taylor.

The next, or fifth, assignment of error is based upon the exclusion of the following question propounded to defendant: "Mr. Watrous, please state whether or not, after the location of the line by Captain White, the owners, or any of the owners, of lot 1 ever made any objection, so far as your knowledge goes, to that line as the boundary line between the two lots?" The objections to this question were that James E. Lipscomb, who was an owner of the land, was dead when the question was propounded, and that Mrs. Taylor was a married lady. In so far as the objection is founded upon Mrs. Taylor's marriage state, it is disposed of by what is said under the next preceding assignment of error. The absence of any objection upon her part may or may not, according to circumstances, have been evidence tending to show acquiescence as to that line, The defendant was competent to testify simply that he had no knowledge of any such objection by Mr. Lipscomb, who had been an owner; and was covered by the question, although he was dead at the time it was asked. Whether or not, in the absence of testimony by Morrison, Watrous could have testified as to the substance or effect of any conversation or other communication which might have taken place between him and Lipscomb, is another question, and not presented for décision. Of course, in the absence of evidence that there was such objection by such owners, there was no presumption that any had been made, and the immateriality of the error of the ruling as to this part of the question is consequently apparent; and, as Mrs. Taylor is not shown to

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