Norris v. Billingsley

Citations

• 48 Fla. 102

Syllabus

<p>1. B. & B., defendants in error, sued N., plaintiff in error, in ejectment. On the trial defendants in error proved that N. went into possession of the land sued for under a written contract of purchase from the grantor of B. & B., the defendants in error, and that N. had held possession ever since. B. & B. offered to prove by a witness that N. had not complied with his contract, “but the court instructed B. & B., defendants in error, that it was necessary to prove a failure to comply with said agreement to purchase.” Held, that this ruling under the circumstances was erroneous as B. & B. having proved the existence of the contract, it was essential to their right of recovery that N. should have broken his contract, under such circumstances of negligence as showed an abandonment of the contract by him, after notice, fixing a reasonable time for its performance; and that if N. had not lost his rights under the contract, it operated as an estoppel and a defense to the suit.</p> <p>2. Under section 1973, Revised Statutes of 1892, when a deed is acknowledged out of the State, but within the United States, the acknowledgment or proof of its execution may be made before a justice of the peace having an official seal, and a deed acknowledged before a justice of the peace in California, having no official seal, can not be properly recorded in this State on such acknowledgment, and its recordation in this State does not make it prima facie evidence under section 21, Article 16 of the constitution of 1885.</p> <p>3. Where a contract is executed in duplicate, each party to it having a copy, one party by proving that his copy is lost has no right to prove the contents by parol where no steps have been taken to cause the other party to produce the duplicate . copy, which it appears was in his possession. Each copy is primary evidence of the contract.</p>