This is an action in ejectment, the praecipe for summons in which was filed on December 13th, 1916. The declaration, filed on January 1st, 1917, alleges in substance that the defendant is in possession of "The West half of the North-west quarter of Section Two (2), Township Forty-four (44) South, Range Thirty-five (35) East," to which said land plaintiff claims title. On February 5th, 1917, the defendant filed a plea of "Not Guilty," and later filed a further plea "that he (the defendant) is not now and never has been in possession of the West half (W 1/2) of the Northwest quarter (NW 1/4) of Section Two (2), Township Forty-four (44) South, Range Thirty-five (35) East, as in said declaration alleged." As far as the transcript discloses, no further proceedings were had in the case *Page 314 until September 14, 1923, when a stipulation was entered into between the attorneys for the respective parties "that the above entitled cause will be tried at the next term of the Circuit Court, to-wit: the 2nd Tuesday in February, A.D. 1924." In addition to this stipulation, on January 10th, 1924, the defendant's attorney served upon the attorney for the plaintiff a further notice that the "defendant will insist upon a trial of such cause during the February term of the Circuit Court, A.D. 1924."
The case was called for trial by the Circuit Court on February 23, 1924, during said Term, at which time the defendant presented a motion for a continuance to the next Term, the affidavit in support of which sets out, in substance, that the defendant and his principal witnesses are old and feeble, all of them residing at distant points in the county and elsewhere, and unable by reason of their health, age and certain abnormal flood conditions, then obtaining around Lake Okeechobee, to travel to the county seat, by reason whereof it would be necessary to take their depositions. The affidavit further sets out the facts to which the defendant expected said witnesses to testify, and contains substantially all remaining essentials prescribed therefor by the familiar rules laid down in cases previously adjudicated. With leave of the trial court, the plaintiff, "to enlighten the court upon the truth of the facts set forth in said motion for continuance" produced several witnesses who testified at length in rebuttal, denying many of the material facts contained in the affidavit of the defendant. The court denied the motion for continuance.
Thereupon, the attorney who had represented the defendant in the presentation of the motion withdrew from any further connection with the case, and the case proceeded to trial, neither the defendant nor any attorney representing him being present, and no evidence being offered on behalf of the defendant. *Page 315
At the conclusion of the evidence the court directed the jury to find a verdict for the plaintiff, consequent upon which final judgment was entered.
The defendant, plaintiff in error here, assigns as error the action of the trial court in admitting the oral testimony of witnesses in rebuttal of defendant's affidavit supporting the latter's motion for continuance; the denial of defendant's motion for continuance; and the action of the court directing a verdict for the plaintiff. The plaintiff in error contends, in connection with the latter assignment, that the defendant in error failed to trace his title back to its ultimate source or to a grantor in actual possession, and that the defendant in error failed to prove that the plaintiff in error (defendant below) was in possession of the lands described in the declaration.
In jurisdictions where the application for a continuance is addressed to the discretion of the trial court, the introduction of affidavits or parol evidence in opposition to the motion is permitted. In passing upon a motion for continuance, the trial judge is vested with a broad discretion. In order that such discretion may be soundly and justly exercised, there must also exist the power for that judge, within reasonable limits, to further inform and enlighten himself, if necessary, upon the matters presented by the movant in support of the motion for continuance. In deciding upon the sufficiency of a motion and affidavit for continuance, no presumption favorable to the applicant is to be indulged. Bolles v. Carson,
In Bolles v. Carson,
To prove its title to the land described in the declaration, the plaintiff introduced in evidence a certified copy of the Field Notes of the survey made by the State of Township 44 South, Range 35 East, together with a certified blue print copy of the original plat of said Township. The plaintiff also introduced a deed, dated December 5th, 1907, from the Trustees of the Internal Improvement Fund to Louisville and Nashville Railroad Company and divers subsequent mesne conveyances terminating with a deed, dated October 8, 1908, from R. J. Bolles to the plaintiff, all of which, in the aggregate, appear to form a connected chain of conveyances from the Trustees of the Internal Improvement Fund down to the plaintiff. No testimony was offered as to possession of the lands by the plaintiff or any of its predecessors in title at the time such deeds were executed, or at any former time. The well established rule in this State is that except in cases where there is a claim of title in plaintiff and defendant from a common source, in order to recover in ejectment plaintiff must prove prior possession in himself, or deraign his title either from some predecessor in possession or from an original or ultimate source. Bunch v. High Springs Bank,
In actions in ejectment, a plea of not guilty, and a plea denying possession of the lands sued for, are not inconsistent with each other and may be filed together in the same action. Gill v. Graham Hampton,
The plaintiff attempted to prove possession of the lands involved by introducing in evidence copies of a series of letters passing between the defendant and the Governor of Florida and between the defendant and the Commissioner of Agriculture, which copies were certified by the Commissioner of Agriculture to be "a true and correct copy" of said letters. In the absence of the defendant and his counsel, there was no objection to the introduction of such copies in evidence. We have examined these letters with care, and assuming the same to be properly identified and authenticated so as to enable them to be placed in evidence before the jury, we find the contents thereof wholly insufficient to make out a prima facie showing of possession by the defendant of the land described in the declaration. The land described in the declaration is the W 1/2 of NW 1/4 of Section 2, Township 44 South, Range 35 East. Whenever in said letters the defendant made specific mention of the description of the lands occupied by him, he expressly declared the same to be the E 1/2 of NE 1/4 of Section 3, Township 44 South, Range 35 East. Nowhere does the defendant admit in his letters that his lands are within Section 2, nor does he at any time admit a location thereof sufficiently definite to identify and accurately locate the same as being the W 1/2 of NW 1/4 of said Section two, or any part thereof. The letters of the Commissioner, even if they would bind *Page 320
the defendant, do not undertake to definitely assert the defendant to be within the lands described in the declaration. The most definite assertion of the Commissioner is that "Itappears that the lands on which you made settlement are located in Sec. 2, T 44, R. 35." What part of the Section, however, is not disclosed. Even if the letters of the Commissioner contained a definite and explicit statement to the effect that the defendant was in possession of the lands described in the declaration, this court has heretofore said that it is extremely doubtful whether testimony in haec verba that a party is in possession of lands is of any weight. Possession may often be a matter of opinion. In proving possession of land, the facts should be shown which in law constitute possession. Horton v. Smith-Richardson Inv. Co.,
The possession of the defendant being specifically denied by plea, and the plaintiff having failed to show prima facie the possession by the defendant of the lands described in the declaration, the trial court erred in directing a verdict for the plaintiff, and the judgment is therefore reversed.
Reversed.
WEST, C. J., AND WHITFIELD, ELLIS, BROWNE AND TERRELL, J. J., concur. *Page 321