Appeal from Circuit Court, La Fayette of each portion is commenced, it being the County; B. H. Palmer, Judge.

The lease is dated February 16, 1904. The consideration is $75, "at the rate of twentyfive dollars per thousand boxes; that is, at the rate of 22 cents per box." "And it is hereby expressly covenanted and agreed that the said parties of the second part (lessees) may commence boxing, working, or otherwise using the said timber for turpentine purposes or any portion thereof at any time that the said parties of the second part may desire, provided the boxes are cut each season be[4] The lease clearly contemplated its contween the first day of November and March tinuance through a period of years during each season, and shall have the right to con- which time the trees would naturally grow, tinue to box, work, or otherwise use the said and, if the value of the lease increased, its timber and every portion thereof for the full validity is not thereby affected. There is terms of three (3) years, beginning with no showing that the delay in beginning to reference to each portion of the timber from box the trees is such an inequitable use of

injustice that could not have been contem- [ 2. ADVERSE POSSESSION (8 70*)-REQUISITES—

plated when the contract was made.

The court found the equities to be with the defendant lessee, and the decree dismissing the bill is affirmed.

CONTINUITY OF
POSSESSIONS.

POSSESSION - SUCCESSIVE

A plaintiff possessing documentary title to land cannot recover the land in an action of ejectment against a defendant when he and those under whom he claims title have been in

SHACKLEFORD and COCKRELL, JJ., open possession of the land for more than seven

concur.

years before the suit was brought, claiming first under a sheriff's deed as color of title, and then by successive deeds with continuous adverse

TAYLOR, HOCKER, and PARKHILL, JJ., possession in the several grantors. concur in the opinion.

On Rehearing.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 394-414; Dec. Dig. § 70.*]

ADMISSIBILITY-RECORD OF DEED.

WHITFIELD, C. J. A petition for rehear-3. ADVERSE POSSESSION (§ 82*)—EVIDENCEing suggests that the court overlooked the contention that the lease conveyed only timber then on the lands, and that the conclusion of the court that the patent referred to in the opinion may have been issued by reason of payments or otherwise and not by actual occupancy is not warranted by the record.

The lease in this case contemplated the working for a period of three years each of different portions of the lands during succeeding years, and the ultimate termination of the lease was not provided for or shown.

The face of the patent warrants a conclusion that it may have been issued under section 8 of the Act of Congress approved May 20, 1862. Even if the patent to a portion of the lands included in the turpentine lease was issued upon a right acquired by occupancy and completed after the execution of the lease, the complainant will not be permitted in a court of equity to repudiate a lease with full warranty made by him, on the ground that a patent had not been issued to a portion of the lands when the lease was made, where the lessee seeks within his rights to enforce the lease only after the lessor had acquired complete title to the lands from the government. Rehearing denied.

A party is not required by law to record an ordinary deed to land, and when he entered into possession under his deed, and has continued in possession up to the time of trial of a suit in ejectment against him for the rethe trial judge to refuse to permit the plaintiff covery of said land, it is not reversible error for to ask him why he kept his deed off the record until after the suit was brought.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 468-471; Dec. Dig. § 82.*]

4. ADVERSE POSSESSION (§ 85*)-EVIDENCE-
ADMISSIBILITY
- - REPUTATION OF

SHIP.

OWNER

Where a defendant is claiming title to land by adverse possession, reputation of ownership may be given in evidence.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 498–503; Dec. Dig. § 85.*1 5. TRIAL (§ 96*)-RECEPTION OF EVIDENCEMOTION TO STRIKE.

A motion to strike the whole testimony of a witness, much of which was proper, is properly refused.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 8 248; Dec. Dig. § 96.*]

6. WITNESSES (§ 262*) — EXAMINATION - RECALLING WITNESS-REBUTTAL.

Where a witness is recalled by the party who introduced him, and questions were addressed to said witness by said party calculated to produce the impression on the mind of the trial judge that they were calculated to elicit testimony in conflict with his testimony in chief,

SHACKLEFORD and COCKRELL, JJ., and no explanation is given which would have

concur.

avoided such a conclusion, and the testimony sought was not in rebuttal of any evidence of

TAYLOR, HOCKER, and PARKHILL, the opposite party, it cannot be held that the JJ., concur in the opinion.

(62 Fla. 220)

JOHNSON et al. v. RHODES. (Supreme Court of Florida, Division B. Oct. 20, 1911.)

(Syllabus by the Court.)

1. ADVERSE POSSESSION (§ 79*)-REQUISITES SUFFICIENCY OF POSSESSION-COLOR OF TITLE-TAX DEED.

trial judge erred in refusing to allow such questions to be propounded.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 797, 899, 904; Dec. Dig. § 262.*1

7. TRIAL (8 66*)-WITNESSES (§ 262*)—APPEAL AND ERROR (§ 970*)-RECEPTION OF EVIDENCE-REVIEW-DISCRETION OF TRIAL

COURT.

The order of the introduction of testimony rests in the discretion of the trial judge, and the exercise of such discretion will not be disturbed unless it is apparent there has been an Plaintiff in error, in whom there is a docu-abuse of it. This doctrine applies to the openmentary title to land, cannot recover it in an action of ejectment from a defendant who has been in possession thereof under a tax deed for more than four years before the suit was brought.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dec. Dig. 79.*]

ing of the plaintiff's case for the introduction of new evidence not in rebuttal, and to the recall of a witness for redirect examination.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 156; Dec. Dig. § 66;* Witnesses, Cent. Dig. §§ 797, 899; Dec. Dig. § 262;* Appeal and Error, Cent. Dig. §§ 3849-3851; Dec. Dig. § 970.*1

8. ADVERSE POSSESSION (8 74*) - EVIDENCE- the part of the attorneys trying the case, ADMISSIBILITY-INVALIDITY OF DEED. Where a sheriff's deed is only introduced and, when all this is brought in the record as color of title, upon which adverse possession to the appellate court whose members did is predicated, it is immaterial whether such a not hear the testimony or observe the condeed is void or not. duct of the witnesses, the task of reviewing [Ed. Note.-For other cases, see Adverse Pos- satisfactorily the ruling of the trial judge session, Cent. Dig. 88 443-447; Dec. Dig. § 74.*] upon the probative force of the evidence is 9. APPEAL AND ERROR (201*)-PRESENTA- not an easy one. TION OF QUESTIONS IN TRIAL COURT-PEREMPTORY CHARGE.

The evidence in this case is very much like that in all similar cases where the witnesses who testify to dates and facts do not al- [1] The twenty-third assignment of error ways speak with the definiteness and cer- presents the question that the court erred in tainty of trained minds. This condition of not excluding the tax deed from the evithings generally and naturally gives occa- dence. The only argument presented by the sion to many objections and exceptions on brief in support of this assignment is that

made a crop on it in 1899; that he left it awhile before Christmas, and Mr. Everett moved straight in. He says he and his brother Henry Davis had been renting the land from Mr. Cailey, and did not move off before they rented from McKinnon; that in 1898 they leased the land from Mr. Cailey, who was the agent of Johnsons, and leased it from McKinnon in 1899; that there was no written lease.

the assessment to P. P. Johnson's heirs was rented the land from Mr. McKinnon, and void under the decision of L'Engle v. Wilson, 21 Fla. 461. It is only necessary to observe that the tax deed follows the form found on page 224, Revised Statutes of 1892, and that this suit was not brought until after the expiration of four years from the time the purchaser of the tax title went into possession, and that this suit as to the land embraced in the tax title was barred under the decision in Florida Finance Co. v. Sheffield, 56 Fla. 285, 48 South. 42, 23 L. R. A. (N. S.) 1102. As no other question is presented in the brief under this assignment, it is not sustained.

[2] We will next take up the question of the evidence as to the adverse possession by the defendant of the other land embraced in this suit for seven years under color of title before this suit was brought.

Mr. W. R. Hayes testified for the defendant that he knew J. T. Rhodes and the land he lived on-the latter for 20 or 25 yearsthat he knew Davis, who lived on the land two years; that Everett went straight on the land when Davis left it, and farmed it; that Nichols farmed it one year, and Mr. Rhodes went on it within a few days after Nichols quit, and has been there ever since, up to the present time, and has been claiming the land. Nichols claimed the land as his when he was on it, and Everett did the same when he was on it; that he has lived two miles from the land for 20 or 26 years.

Mr. A. L. Richter testified for the defendant that he knew the defendant, Rhodes, and the place he lives on, the latter for 27 or 28 years; that he knew the witness Davis, who lived on the place 2 years, and farmed it; that after Davis Mr. Geo. Everett lived on the place; he moved on the place the same fall the Davis brothers moved off, and farm

The first instrument upon which the defendant relies is a deed of the sheriff of Jackson county, Jas. A. Finlayson, to A. D. McKinnon, dated March 14, 1898. The second instrument to support color of title is a deed from A. D. McKinnon and wife to S. W. Wilson and Eva P. Everett, dated October 19, 1899. The third instrument to support color of title in defendant is a deed from Wilson and wife and Eva P. Everett to Margaret M. Nichols, dated 13th of December, 1902, and the fourth instrument relied on to support color of title in defendant is the deed of Margaret Nichols and her hus-ed it; that John Nichols lived on the place band, John Nichols, to the defendant, dated 10th of October, 1903. The deed from Sheriff Finlayson to McKinnon was objected to when offered in evidence, because it was not recorded, and because the judgment and execution on which it was based were not produced in evidence. When offered by the defendant, it was stated that it was only offered as color of title, and no authority is shown by the plaintiffs in error why the deed alone was not sufficient for such a purpose, in view of the decision in Kendrick v. Latham, 25 Fla. 819, 6 South. 871. This disposes of the fifth assignment of error.

There is no assignment of error based on the admission in evidence of either of the other deeds introduced by the defendant in support of his color of title. We will now address ourselves to the evidence in support of possession by the defendant of the N. E. 4 of section 24, township 5 N. range 13 W., under his color of title. D. L. McKinnon testified for the defendant that he represented his brother at the sale of the land under the execution, and bought it for him; that his brother rented the land to a man named Davis the day the deed was made, which was the 14th of March, 1898; that the place was occupied and cultivated in 1899.

Mr. C. T. Davis testified for the defendant that he had known this land ever since it was settled; that he was living on it at the time it was sold by the sheriff; that he

one year after Everett, and farmed it, and that Mr. Rhodes lived on the land after Nichols lived there, and has been living there ever since, and claimed the land as

his; that the place was reputed to be McKinnon's "along the last days" Davis was on it.

Mr. Rhodes testified on his own behalf that he had known the land involved in this suit about eight years; that it has been in cultivation ever since he knew it, about 160 acres; that there is a dwelling house on it and a little barn; that he moved on the land the last of December, 1903; that John Nichols was on the place and moved out in the morning and witness moved in that night; and that he, witness, got a deed from John Nichols.

The foregoing is the substance of defendant's evidence as to possession.

The evidence of the plaintiffs bearing on the question of the possession of this land was in substance as follows:

Seth Johnson testified: That he knew the S. E. 4 of S. E. 4 of section 13, took charge of it himself for himself and other heirs of P. P. Johnson. That he rented it to a man named Cawthon in 1893 and 1894, and collected the rents. That Cawthon was there under his father, and witness let him That his father died in September, That as to the N. E. 4 of section

stay.
1893.

he continued in charge of it until 1898, and covered under some other assignment of erthis statement he repeats. That he was ror. ousted by D. L. McKinnon, "the sheriff, supposed to be the sheriff's execution." That he does not remember exactly the yearly rentals, nor how much he collected, some years more than $125, according to the cotton made. That witness lived in Alabama, and put Cawthon in charge. That his father put him there in 1892. "Yes, sir; I continued there until 1894." He (Cawthon) had about six acres inclosed, "not very much"; there were no buildings on it. That he had as an improvement a "little old rail fence." That Cawthon was there two or three seasons, and then a man named Davis. That "it has been a long time ago." That he did not know who was on the 160 acres in 1895. That he does not believe he went there in the fall of 1898. That he could not be positive, but he thinks Davis was there in 1897. That, "as to whether I put him on the last of the year in which I was ousted, well, I don't know. I don't think he had his rent and that ousted him in 1898. No; I don't know who was there in the spring of 1898. I think he might have gone out in the spring of 1898. * * * No, sir; the Davis Brothers did not pay me any rent in 1899."

Mr. J. E. Cailey testified for the plaintiffs, in substance, as follows: That he knew the land known as the Cawthon place. It is in section 24, township 5, range 13. That he was in charge of the place for P. P. Johnson's estate in 1896, 1897, and 1898, with possession. That he made his report to Seth Johnson. That he leased the land in these three years. That he collected the rents for it of Davis $150 a year. That the whole place consisted of 200 acres. That Davis was on the place in 1898-Davis brothers. McKinnon got his deed under the execution sale in 1898 or 1899. That he did not rent it any more after that.

The foregoing presents the substance of all the evidence of possession of the 160 acres embraced in the sheriff's deed to McKinnon after the execution of that deed, to wit, 14th of March, 1898. It seems to us that it shows a very clear case of continuous adverse possession by defendant, Rhodes, and those under whom he holds for more than seven years before the bringing of this suit on the 11th of July, 1906. Seth Johnson admits that he was ousted by this sale and conveyance, and his agent, Cailey, who had charge of the property, states positively that he did not rent it after 1898. Davis was on the place as a tenant of Seth Johnson or Cailey in 1898, but his relation as a tenant to Seth Johnson seems clearly to have ceased in 1898, and it is clear that he rented from McKinnon for the year 1899. We can discover no error committed by the circuit judge in giving the affirmative charge for the defendant, and the judgment must

The first assignment of error is that the court erred in admitting in evidence the deed of George T. Everett, Eva P. Everett, Sarah V. Wilson, to Margaret M. Nichols, over plaintiff's objection. The objections to the introduction of this made by the plaintiffs as shown by the record are: (1) That the deed was not recorded until the 20th of June, 1910, after the institution of the suit. (2) That it is not shown that the people who made the deed were in possession at the time the deed was made. The date of the deed is December 13, 1902. The testimony shows that Everett lived on the place four years; that he was on the place just before Nichols moved on it, and that Nichols succeeded Everett in the possession of the property; that Nichols moved there about Christmas time; that George Everett's family was on the land and farmed it all the time after they bought it. C. T. Adams testified for the defendant that George Everett went on the land immediately after Davis, that Everett farmed it four years, that John Nichols went on it after Everett and farmed it one year. Joe Jowers, a witness for the defendant, testified that Everett made four crops on the land, and that John Nichols moved on it after he got it; that he lived there and made a crop. The evidence of A. L. Richter is to the same effect. The evidence of the defendant shows an unbroken continuity of possession in these parties under whom the defendant claims, including defendant's possession from at least the first of 1899 to the time the case was tried. There is nothing in the evidence to the contrary. The only argument to sustain this assignment is that there is some inconsistency in Davis' testimony as to when he rented from McKinnon, but we think a careful examination of the whole testimony of Davis shows no essential conflict or inconsistency. He stated plainly two or three times that he rented the land two years, one year, 1898, from Mr. Cailey, the agent of plaintiffs, and the next year, 1899, from McKinnon. There is no other question presented under this assignment, and we do not think it is sustained.

[4] The second assignment is based on the action of the court in overruling plaintiffs' objection to the following question propounded to the defendant: "Everett and Wilson were on the land, who was reputed to be the owner at that time?" No authority is cited to sustain this assignment. Where a defendant is claiming title by adverse possession, it seems that reputation of ownership may be given in evidence. Maxwell Land Grant Co. v. Dawson, 151 U. S. 586, text 603, 14 Sup. Ct. 458, 38 L. Ed. 279.

[3] The third assignment is based on the action of the trial judge in sustaining the defendant's objection to the following ques