The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1885-03-12

Hicks, Bstsey Hoffman and Nelson Hani
,.AppelIees-Appeal from Duval county.
AcWHoKTRR, G. j.:
In the trial Of an ejectmen. suit for lot one ~
Diock one ~, according to the map or plot Of thu
town Of Brooklyn, a paper purporting to be
receipt for taxes, which does not on its fact
| identify the land described in the declaration
with the land described in said paper on which
the taxes had been paid, should be rejected i
objected to, unless the party Offering said paper
offers by other evidence TO connect the land Ia
controversy with the land described in said paper
The same principle applies to deed, the calls
OF which do not, from the language used therein
| appear to cover the land in controversy.
judgment reversed.
Geo. Wheaton Deans, for Appellants; c. L.
Robinson, for Appelleea
| n. E. Fricker and Frank Fricker, Appellants
vs. Peters and Calhoun Company, Appellees-
Duval county.
| McWHoRTER, c. j.:
l. A receiver should not be appointed except
on notice to the party whose property is to be
divested, except in cases of the gravest emer-
gency. demanding the immediate interference Of
the court for the prevention Of irreparable in
jury"
Q. A bill asking the appointment of receiver,
without notice to the party whose rights are to
be affected, should set forth with particularly
the facts and circumstances relied on to justify
0u psftc cAcICISc Ot tulS extraordinary power.
Judgment reversed and cause remanded.
c. p. & j. c. Cooper, for Appellants; Jno. T.
& Geo. U. Walker, for Appellees.
Emily s. Sullivan and Martin H. Sullivan, Ex-
ecutrix and Executor, Appellants, vs. ]. J.
Jernigan, Appelee-Appeal from Escambia
county.
McWHORTER, c. j.:
l. The ordinary skill and caution exercised
by the timber raftsman on the Escambia river is
q proper standard of comparison to ascertain
whether particular raft was navigated down
said river with the necessary degree of skill and
caution
2. The existence or non-existence Of a Gus
tom is question Of fact for jury. It's validity
or invaldity is question of law for a court.
8. Custom cannot prevail against legal right.
4. Any person has a right to drive logs or
timber, without putting said logs or timber in
rafts or Clamps and putting competent persons
in said RATS clamps to guide them, on any navi
gable stream in this State, at least 80 far as such
driving of logs or timber does not impinge upon
the right of another TO Navigate said river in any
manner authorized by law.
5. The knowledge of Que about to drive logs
down public stream that another had Obstruc
ted the stream with boOms, and who, notwith-
standing said ObstructiOns, sets adrift his logs,
which come in contact with said bOOms and he
is damaged thereby, does not establish contribu-
tory negligence on the part Of him who is dri-
wing said logs The right to navigate the stream
is paramount to any obstruction not authorized
by law.
Judgment reversed and new trial granted.
Jno. A Henderson, for Appellants; w. A
Blount, for Appellee.
VIM. H. Ashmead, Clarence H. Ashmead and
Martin Griffin, Appellants, vs. Emily r. Will
son, Execulrix of Converse Park6urst, de-
ceased. and James Y. Wilson, her husband,
Appellees-ADpeal from Putnam county.
MCWHoRTER. G. j.:
l. In an ejectment suit the description of
property in deed introduced rs evidence must
correspond with the description of the land de-
scrlbed in the pleadngs sufficiently to establish
their identity. When identity really exists but is
not apparent from the language, parol proof
may be introduced to show that although the
description of the land in the deed and pleadings
is different, yet that the same land is described
in both proof and pleadings.
q In suit in ejectment by the Executor Of A.
for tract of real estate of which A. was found
to be in possession for long time prior to his
death, the character in which such executor sues
not being denied, any possession by the execu-
tor of said real estate after the death of A. and
before suit will be presumed to be by the execu-
tor as executor.
g. A plaintiff in ejectment may recover upon
proof OF prior possession against one found in
possession of the land without title.
L. Ii is not error to refuse to admit in evidence
a certified copy of judgment; an authenticated
copy OF the whole record, or the record itself
should be produced.
5. A charge which instructs the jury that a
deed which is in evidence shows q fee simple
title in an estate, is erroneous
D. A charge 10 jury in suit 10 ejectment by
an executor as such, that they should ind in their
verdict that the plaintiff has fee simple title in
the land sued for, is error
7. charge to a jury which assumes the
trnth Oc material atloUatinu which ia in die
putc, usurps the prerogative of the jury.
g. When the description of land sued for in
the pleadings is not supported by description in
the deed introduced as evidence, an instruction
to the jury that the dceI shows title TO the prop
erty in suit, is e. ror.
Judgment reversed.
Randall, Walkers & Foster, for Appellants A.
W. CockreIl & Son, for Appellees
John Jay Knox, Commissioner, and George
Wheaton Deans, Administrator, Appellants,
VS.. L. W. Spratt and W. B. Barnett Appel
lees-Appeal from Duval county.
hCWHoRTER, c. j.:
1. When A. makes a contract for sale of real
estate with B., having at the time of said con-
tract only limited interest in the property sold,
the contract not being Objectionable r1der the
Statute of Frauds. B. Is entitled in equity TO
compel A. to convey 50 much OF said real estate
as lies in his power 10 convey with cOmpensa-
tiOn by deduction from the agreed price, for the
residue Of said property, which A. has no power
10 convey.
2. But B. has no such right. if at the time of
sale he had notice that there was defect in the
title of A.
3. A specific execution of q contract for the
sale OF lands is not the right Of either party to
such contract, but rests In the sound and reason
able discretion OF the court
4. A purchaser seeking the aid of q court of
equity to enforce q specific execution OF IA con-
tract for the sale of lands must show that he
has acted with promptness and diligence; W hile
time s not Of the essence of the transaction an
unreasonable delay In the assertion of his rights
not satisfactorily accounted for will he consid-
cred in eq lity as an acquiescence in the refusal
Of the other party 70 the contract to convey and
as an abandonment of his equitable rights. "A
court of equity will not allow OF delay which
would enable the purchaser to take advantage
of turn in Tie market and haze the contrast per-
formed only in case IL suited hiDa."
Decree reyet.ed.
Geo. Wheaton Deans, for Appellants; Randall,
Walkers and Foster, for Appelleea
A. Smoot and s. G. Hartshorn, Executors of g.
r. Mabbelt, deceased. Appellants, VS.. S. B.
Strauss, Appelee-Jefferson county
McWHoaTER, G. j.:
1. In proceeding under q statute requiring
an affidavit as an iniiiaiOry step, and dispensing
with written pleadngs. the affidavit stands in
lieu of and performs the functions Of o declara
ton.
Q. A motion by plaintiff for new trial will be
refused, Notwithstanding error In admitting lille
gal evidence In behalf OF the defendant, or error
| by the court favoring defendant 10 charging the
| inrv when plaintiffs evidence fails entirely TO
sustain the allegation in the adavit Such errors
are not an injury TO the plaintiff.
Judgment affirmed