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We must determine, then, the sufficiency of the attestation clause of the lease from Allen to Johnson & Rose.
In Hogans v. Carruth, 19 Fla. 84, this court said: "As to the matter of the attestation of the deed, our statute does not require any particular form of words for the attestation clause of a deed and the attestation clause of a deed in the words: ‘Bargained, sold, transferred and acknowledged in presents (presence) of us,' where the testificandum clause is: 'In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written,' other facts showing delivery being established is sufficient. The term 'acknowledged' indicates that the parties affirmed the signing and sealing to be their act before these witnesses."
In 9 American & English Encyclopedia of Law, second edition, 150, it is said: “It is advisable for witnesses to sign under the phrase commonly used in the state where the land lies, yet any phrase which clearly denotes that the persons signing were witnesses will be valid.”
Do the letters “wit" written above the names of J. R. Smith and Joe Allen clearly denote that these persons were witnesses, so as to comply with our statute herein 182 quoted ? The answer to this question is not without difficulty. The phrase commonly used in this state to denote that the persons signing are witnesses is "signed, sealed and delivered in the presence of.” An attestation “sealed and delivered in the presence of” the subscribing witnesses has been held sufficient: Fosdick's Lessee v. Risk, 15 Ohio, 84, 45 Am. Dec. 562. In that case the court said: “True, the words of the statute are that the witnesses shall attest the signing and sealing,' but, really, to require the strictness insisted upon by the defendants' counsel, would be going a great length; it would be taking one step more toward that point to which we seem to be progressing with railroad speed—the point of declaring all the land titles in the state doubtful, defective or uncertain. The same technical nicety is not required in the execution and acknowledgment of deeds as in special pleadings. If deeds are acknowledged substantially in accordance with the statute, it is all that can be required. The signing and sealing of deeds is usually done at one and the same time, unless, perhaps, the scrivener who writes them shall have attached the seal at the time of writing, and previous to the signature. In such case the sealing is adopted by the signature of him who executed the instrument. It is not customary for a man to sign on one day and another make his scrawl or attach a wafer. There is not, I presume to say, one case in a thousand
in which the same person who witnesses the sealing does not witness the signature also. And after all, it is the delivery which gives effect to the instrument."
In the case of Arrington v. Arrington, 122 Ala, 510, 26 South. 152, the court said: “The deed has the names of two persons written in the place where the names of subscribing witnesses are usually placed, and found upon such instruments, but the word ‘attest' or 'witness' does not appear alone or in connection with these names. Nor are there any other words appearing upon the deed showing the purpose of their signatures. ... At common law attesting witnesses to a deed were not essential to its validity as a conveyance of lands, prior to the adoption of the statute requiring them to be attested or acknowledged this rule prevailed in this state. .... The usual clause to denote that the witnesses sign as such is: 'Signed, sealed and delivered in the presence of the witnesses writing their names thereunder.' .... The mani'fest object of requiring an attestation of subscribing witnesses is to enable the grantee to prove the execution by the grantor of the deed, and to show the circumstances attending the sealing and delivery. No formal words are requisite under the statute to be incorporated in the deed, or upon it, to show that the names subscribed are those of witnesses. Its language is: “The execution of such conveyance must be attested by one witness, or, when the party cannot write, by two witnesses who are able to write, and must write their names as witnesses’: Code 1896, sec. 982. True, they must write their names as witnesses upon the deed, but we cannot hold if from an examination of the instrument it clearly appears, as it does in this case, that the only purpose for which the names were written was to attest the signature of the grantor to the deed, that they are not witnesses; simply because of the failure to employ some word or words indicating the purpose for which their names were written."
We do not overlook the difference between the Alabama statute and our own in this respect, but the applicability of the persuasive reasoning of the court in the cases cited
is apparent. A deed properly delivered is not invalid because the attestation clause recites that it was signed and sealed only, without reciting that it was delivered: Bradley Fertilizer Co. v. Pace, 80 Fed. 862, 26 C. C. A. 198; Hogans v. Carruth, 19 Fla. 84. There was proof of the proper delivery of this deed; and it was shown also that the deed was in possession of the grantee and that the deed was recorded, which is prima facie evidence of its delivery: Southern Life Ins. etc. Co. v. Cole, 4 Fla. 359; Campbell v. Carruth,
32 Fla. 264, 13 South. 432; Billings v. Stark, 15 Fla. 297; Ellis v. Clark, 39 Fla. 714, 23 South. 410. Were the attestation clause of the deed in the instant case “signed and sealed in the presence of us” it would clearly be sufficient. The concluding clause of the deed in question declares “in witness whereof we hereunto set our hands and seals." Under those words, on the left-hand side of the page, in the place where the names of witnesses to the execution of a deed are usually found, appear the word or letters “Wit" and the names of two persons. We have no difficulty in coming to the conclusion that “wit” means and stands for the word “witness,' or “witnesses," and, therefore Smith and Joe Allen signed the deed as wilnesses, and that they were witnesses of the setting of the hands and seals—of signing and sealing --of the grantors in the deed, as declared by them in the concluding clause of the deed. We think the deed shows substantially and clearly upon its face that it was signed and sealed in the presence of the two persons who purport to have signed the same as witnesses. In coming to this conclusion, we confine our decision to the objections raised.
2. The fourth assignment of error is: “The court erred in admitting in evidence the transfer of leases made 185 by Johnson and wife to E. P. Rose.” The paper referred to here was a properly executed and acknowledged and recorded transfer by J. N. Johnson of his undivided one-half interest in several timber leases, including the one from J. B. Allen and Alice Allen, his wife, already introduced in evidence by the plaintiff. To the introduction in evidence of this paper, the defendant objected, on the ground that the title of J. B. Allen in and to the locus in quo had not been traced back to the government; but plaintiff announced his intention to do so, and the objection was overruled, the paper admitted in evidence, to which ruling the defendants excepted. This ruling of the court was correct, because later the plaintiff offered and the court admitted in evidence letters patent from the United States to Joseph B. Allen for the land, covered by the lease from Allen to Johnson and Rose, already in evidence.
The trial court is authorized to regulate the order of the introduction of evidence, and its discretion in this matter will only be interfered with by this court where clearly abused: Wilson v. Johnson, 51 Fla. 370, 41 South. 395.
3. The fifth, sixth, seventh and eighth assignments have been argued and will be considered together. They relate to the refusal of the court to admit in evidence a deed, duly executed, acknowledged and recorded, from J. B. Allen and wife to J. M. Barrow, purporting to convey the lands included in the lease by Allen to Johnson and Rose prior to the deed from Allen to Barrow. The other deeds covered by these assignments include a deed from Barrow to Madden, a deed from Madden to Settles, a deed from Settles to J. A. Richbourg & Co., and a deed from Barrow to J. A. Richbourg & Co., purporting to 186 convey the lands involved in this suit, and which had been leased to plaintiff Rose before the execution thereof. Upon being offered in evidence by the defendants, each deed was objected to by the plaintiff upon the ground that the “deed bore date subsequent to the date and record of the timber and turpentine lease from the original owner to the plaintiff, the source from which all these titles sprung.” The objection was sustained and the court refused to allow the deeds to be read in evidence, to which ruling the defendants excepted.
Counsel for plaintiffs in error contend that the sale of the standing timber for turpentine purposes made by Allen and wife to Johnson and Rose was nothing but a mere license liable to revocation, and was revoked by the making of a subsequent conveyance by the licensor, without a reservation; that the timber lease from Allen to Johnson and Rose passed no interest in the land upon which the timber grew. In support of this contention, counsel cites Fish v. Capwell, 18 R. I. 667, 49 Am. St. Rep. 807, 29 Atl. 840, 25 L. R. A. 159. The written instrument therein relied upon, not acknowledged or recorded as a deed, purporting to convey all the standing wood on a certain lot of land, with two years in which to cut and remove said wood, was construed not as passing any interest in the land, but as an executory contract or parol license, which was revoked by a subsequent conveyance of the land to another person. In a note in 25 L. R. A. 159, the author says: “While as the court states in the above case it refuses to follow the weight of authority upon the question how far a sale of standing timber is within the statute of frauds (see note to Hirth v. Graham (Ohio), 19 L. R. A. 721), it seems to have at the same time applied the rule in force in states holding sales to be within the statute as to
attempted sales being regarded as a license. The only way to reconcile the two positions would seem to be to hold that no sale was effected until the timber was delivered. In other words, that a sale could not be made of standing tim
Other cases cited by counsel hold that an agreement to sell another the wood and timber on certain land with a given time to remove it is an executory contract for the sale of chattels to take effect when the timber is severed from the land, with a license to enter and cut the trees and remove
them, and that this license is revocable at any time before the purchaser has entered and cut the trees: Fletcher v. Livingston, 153 Mass. 388, 26 N. E. 1001; Drake v. Wells, 11 Allen (Mass.), 141; United Soc. v. Brooks, 145 Mass. 410, 14 N. E. 622; Claflin v. Carpenter, 4 Met. (Mass.) 580, 38 Am. Dec. 380. To the same effect is the holding by this court in Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19, Counsel are mistaken in their contention that the instrument relied upon in Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19, : is similar to the one in the instant case. The instrument signed by Atkinson in the former case was nothing but a contract to cut the cedar within a reasonable time, the court saying on page 158: “The doctrine is that though the simple agreement for a sale of the trees is void as a contract for an interest in land, standing trees being of the realty, yet if executed by cutting the trees, timber is converted into personalty, and was sufficient to vest a title thereto in the party acting under the license, he having complied with the conditions under which the license was granted." The instrument in that case contained no words of conveyance, simply stating: “This is to certify that I have sold to C. T. Jenkins
all the cedar now standing. .... The condition that the said C. T. Jenkins 188 do give the sum of one hundred dollars in a promissory note," etc. The instrument in the instant case is not a license, or executory contract or agreement to sell growing trees. It acknowledges receipt of payment of one hundred and fifty dollars by Johnson and Rose, and recites that grantors have granted, bargained and sold, and by these presents do bargain, sell and convey unto the said Johnson & Rose all the pine timber now standing” upon the lands therein described. It provides, “we further grant, bargain, sell and lease unto the said Johnson & Rose the abovedescribed lands to be used for turpentine purposes and privileges, giving and granting unto the said Johnson and Rose the right at any time from the date hereof until the first day of May, 1910, to enter upon and work said timber for turpentine purposes as well as to cut and remove said timber from said land with the right of ingress and egress to and from same." This instrument, duly acknowledged and recorded, was not revoked by the subsequently executed deed of conveyance of the real property made by Allen and wife to J. M. Barrow: Owens v. Lewis, 46 Ind. 488, 15 Am. Rep. 295.
4. Plaintiff's in error contend that the deed from Allen and wife to Barrow, and the other deeds under which defendants claimed, ought to have been admitted in evidence as showing