Scott v. Jenkins

{On rehearing. July 28, 1903.)

Hocker, J.

After the rendition of the decree in this cause, and within the proper time, a petition for rehearing was filed by appellees, wherein it is stated that in making the decree dismissing the cause for want of parties, this court overlooked some of the facts of the case, and the legal principles applicable to them, among others, that the court overlooked the fact that the mortgage sought to be foreclosed embraced not only real estate, but certain personal property and choses in action, a part of which had been sold and delivered by W. G. Holloway, the mortgagor to appellants Walker, Espey and Farmer, after the execution of the mortgage, and that neither Mary Holloway nor her heirs nor administrator were necessary parties to the litigation, in so far as that property was concerned, and that if *525she had been interested therein, her administrator, and not her heir, would have been the proper party defendant.

The petition also suggests that the record shows that the title to real estate was properly represented in the court below, because, although the answer of the defendants alleged that Mary Holloway died on the eighth of October, 1892, a replication to the answer was filed, which put that fact in issue, and that no proof was offered to sustain the allegation, and that aside from this the record shows that by an agreement between the parties, found on page 44 of the record, it seems to have been conceded by all parties that the administrator of Mary Holloway was fully authorized to represent the title to the real estate and was served with proper notice; and further the petitioners suggest that the administrator having been made a party in accordance with the statutes and rules of court, as the proper party authorized to represent the title and so judicially declared by the Circuit Court, that every presumption is in favor of the proposition that he was appointed before the Revised Statutes became effective, and that inasmuch as the- appellants have not raised the question of absence of indispensable parties in this court, the court itself should not sua sponte reverse the solemn decrees of the court below.

It is further contended that the instrument of writing from W. G. Holloway to Mary Holloway, attached to the answer of the defendants, as being the deed of conveyance to her of the lands embraced in the mortgage, was not sealed, and was ineffective both in law and equity as a conveyance of the title to Mary Holloway, and that the title remained in W. G. Holloway up to the time of his death in December, 1891. This we believe is the substance of the petition for a rehearing. After consideration the petition for a rehearing was granted.

It is very ably argued by the appellees that the rule laid down in Merritt v. Daffin, 24 Fla. 320, 4 South. Rep. 806, which holds that “an administrator holding the real estate of his intestate as assets is, under the laws of Florida, *526the only necessary party to a suit for the foreclosure of a mortgage made by the intestate,” and that the heir is not a necessary party, and though not a party, is concluded by a decree of foreclosure and sale therein against the administrator, has not been altered by section 1917 of the Revised Statutes adopted in 1892. That section is as follows: “Real estate shall be liable for the debts of a decedent, but shall descend to the heir or devisee of such decedent, and remain in his possession until the executor or administrator shall take possession of, or sell the same, under the order of the court, for the payment of debts, or until the same shall be sold under execution by any creditor of the decedent.”

Before the enactment of the Revised Statutes, chapter 1732, laws of 1870, was in force. The first section of the act provided that “real estate shall be considered assets in' the hands of an executor or administrator.” The second section provided that “real estate in the hands of an executor or an administrator shall be equally liable with personal property to levy and sale under an execution upon any judgment against such administrator or executor,” etc. The third section related to conveyances of lands and tenements sold in pursuance of a will, or by order of the court if not authorized by the will. Section 2 is embraced in section 1918, Revised Statutes, and a portion of section 3 is embraced in section 1919, Revised Statutes, but section 1, making real estate assets in the hands of an executor or administrator, is entirely omitted. It is contended, however, that inasmuch as real estate may be sold on execution against the administrator under section 1918, Revised Satutes, and as section 1934, Revised Statutes, authorizes conveyances by an administrator in pursuance of decedent's contracts to convey real estate, and section 1639 authorizes attachments against assets of a testator or intestate, where the administrator or executor resides or has removed beyond the limits of the State, and as these several sections are substantially taken *527from the laws in force and referred to in Merritt v. Daffin, including the omitted section making real estate assets, as the basis of that decision, the quoted section of the Revised Statutes (section 1917) has not altered the rule, and that real estate is now assets in the hands of an executor or administrator for the payment of debts. We have carefully considered the argument and examined the authorities cited, and our judgment is that the revisers, and the legislature in enacting the revision, had in mind the previous decisions of this court, and intended to materially change the status of an executor or administrator towards real estate, at least so far as the right to the possession thereof is concerned. In the case of Sanchez v. Hart, 17 Fla. 507, this court had occasion to determine the effect of the statute which made real estate assets for the payment of debts, taken in connection with the other statutes referred to, and held that their effect was to give the administrator the right of entry, and the right to the possession of real estate, as well as rents and profits, and, therefore, he alone had the right to bring an action of ejectment.

The case of Merritt v. Daffin, supra, and other Florida cases to the samé effect are relied on. The court says (p. 328) : “It is unnecessary to review all the statutes upon which these decisions are founded. The conclusions reached flow naturally and logically from the fact that our statutes have made lands ‘assets,’ and that as such they are answerable in the hands of the executor or administrator for the payment of the decedent’s debts; and as assets the administrator is the one in whose possession the law, by making them such, places them, and to whose care it intrusts them.” It is plain from a perusal of the opinions in these and other cases what great importance is attached to the word “assets” used in the then existing statute. This is peculiarly apparent from the above language quoted from Merritt v. Daffin. Certainly, then, the legislature had a purpose in omitting from the Revised Statutes the section making real estate assets in the hands of an administrator or executor. *528We think it is plain under section 1917, -Rev. Stats., that an executor or administrator has no right to the possession of a decedent’s real estate until ordered by a competent court to take possession, and that it remains in the possession of the heir or devisee until such order has been made, or until it shall be sold under execution by a creditor. The bill alleges positively, on page 6, that W. G. Holloway on the eleventh day of December, 1891, conveyed by deed all the lands he owned to Mary Holloway. The heir or heirs of Mary Holloway were not afforded an opportunity to admit, deny or prove the fact alleged in the bill.

It is further contended that as this bill was filed in February, 1892, before the Revised Statutes went into effect (June 13th, 1892), and as it appears that the deed to Mary Holloway by W. G. Holloway introduced in evidence was without seal, said deed was void, and the title did not pass from W. G. Holloway to her; that this was the status of the title when the bill was filed against the administrator of W. G. Holloway, and that the rights of the administrator to the real estate could not be divested by the section 1917, Revised Statutes, as that would be giving the section a retroactive effect. Under the allegation of the bill alleging the making, of the deed by W. G. Holloway to Mary Holloway, we are not prepared to say that the complainants in the bill can avail themselves of the alleged defect in the deed, nor is it clear that the instrument purporting to be a deed can be ignored as conferring no equitable rights upon Mary Holloway. 1 Devlin on Deeds, sec. 246; Beardsley v. Knight, 10 Vt. 185, S. C. 33 Am. Dec. 193; Frost v. Wolf, 77 Texas, 455, 14 S. W. Rep. 440, S. C. 19 Am. St. Rep. 761; 1 Pomeroy’s Fq. Jur. (2nd ed.), sec. 383; McCaled v. Pradat, 25 Miss. 257; Wadsworth v. Wendell, 5 Johns. Ch. 224.

The third section of the act of 1891 enacting the Revised Statutes is as follows: “The repeal of any statute by said revision shall not affect any right accrued before such repeal.” It is alleged in the answer of the administrator *529that Mary Holloway died on the eighth day of October, 1892, pending the. suit, and therefore before the issues were made up. There was a general replication to this answer, and no proof was taken on.this point, but that was rendered unnecessary by the act of the complainants in causing Mary Holloway’s administrator to be made a party to the .suit. This was equivalent to an admission by the complainants that Mary Holloway had died as stated in the answer. Besides, the record shows that on the seventh day of September, 1892, the judge overruled the demurrer of all the defendants, including Mary Holloway, to the bill. The presumption is that she was living at that time. It seems, therefore, to be clear that Mary Holloway was alive until after the Revised Statutes went into effect, and that no right, had accrued to the complainants to sue her administrator before that time, even if it could be contended that at any time before a final decree the complainants had an accrued right in statutory powers conferred on an administrator. South Carolina v. Gaillard, 101 U. S. 433; Gilleland v. Schuyler, 9 Kan. 569; New London Northern Railroad Co. v. Boston and Albany Railroad Co., 102 Mass 386; Inhabitants of Macnawhoc Plantation v. Thompson, 36 Me. 365; City of Detroit v. Chapin, 108 Mich. 136, 66 N. W. Rep. 377, S. C. 37 L. R. A. 391; Commonwealth v. Beatty, 1 Watts (Pa.), 382.

In Bank of Hamilton v. Dudley’s Lessees, 2 Peters, 492, Chief-Justice Marshall, in discussing a kindred question to the one at bar says: “Counsel for plaintiff in error have also contended that the interest of the administrators in the real estate, as trustees for the creditors, was a vested interest which the repeal of the law could not divest and that they might proceed to sell under the sanction of an order made even after the law was repealed. This is a point on which we can not doubt. The lands of an intestate descend not to the administrator, but to the heir. They vest in him, liable it is true, to the debts of the ancestor, and subject to be sold for,those debts. The administrator has no estate *530in the land, but a power to sell under the authority of the court of common pleas.. This is not an independent power to be exercised at discretion, when the exigency in his opinion may require it, but is conferred by the court, in a state of things prescribed by law. The order of the court is a prerequisite, indispensable to the very existence of the power, and if the law which authorized the court to make the order be repealed, the power to sell can never come into existence. The repeal of such a law divests no vested estate, but is the exercise of a legislative power which every legislature possesses. The mode of subjecting the property of a debtor to the demands of a creditor must always depend on the wisdom of the legislature.” Campau v. Gillett, 1 Mich. 416; Sutherland on Statutory Construction, section 165.

The act enacting the Revised Statutes repealed all statutes of a general and permanent nature, and parts thereof, not included in the Revised Statutes or continued in force by reference therein.

It is also contended that because it does not appear from the record that an order was not made giving the administrator the right to take possesion of the real estate, it must be presumed that a proper order was made. We, however, think that even if such an order were alone sufficient to render the heirs unnecessary parties, such an order should be alleged in the bill. 2 Phillips on Evidence (4th Am. ed.), p. 471, note 429, on the necessity of proof of a power, and Richardson v. Gilbert, 21 Fla. 544, text 547; Anderson v. Northrop, 30 Fla. 612, 12 South. Rep. 318, and Pinney v. Pinney (the last case decided at the present term) are authorities for the proposition that a bill is most strongly construed against the pleader, and that no facts are in issue except such as are alleged. Stark v. Brown, 12 Wis. 572, is an instructive case upon the relation of an administrator or executor to the real estate of a decedent.

It is also contended that if the court should be of opinion that the heirs of Mary Holloway were necessary parties to the foreclosure, against the land, that yet under *531Equity Rule 34, the defendants not having made any objection by plea, answer or otherwise, that the suit was defective for want of parties, this court should affirm the decree, saving the rights of absent parties. This contention is answered in Robinson v. Howe, 35 Fla. 73, text 81, 17 South, Rep. 368. The court says: “The failure to raise the objection by demurrer, plea or answer, that necessary and indispensable parties are not made to a bill, is not a waiver of the right to make such objection before final hearing or even on appeal.” '

The court proceeds to say (page 82) that after it had developed in the testimony that other parties than those before the court had acquired an interest in the lot sought, to be subjected to the judgment lien, tlje court should have required them to be made parties to the suit. P. 82. Sloan v. Sloan, 21 Fla. 589; Lyon v. Register, 36 Fla. 273, 18 South. Rep. 589; Jordan v. Sayre, 29 Fla. 100, 10 South. Rep. 823. In the case of Greeley v. Hendricks, 23 Fla. 366, 2 South. Rep. 620, the third headnote is as follows: “When a decree has been rendered in the absence of proper parties it will be reversed by the appellate court of its own motion.”

It is further contended that even if the decree appealed from is faulty as regards necessary parties to a foreclosure t of real estate, it was not defective in regard >to parties as a foreclosure of the personal property. We have carefully examined this contention, and we think it is sound.

As regards the personal estate of W. G. Holloway, deceased, embraced, in the mortgage, it was assets in the hands of his administrator for the payment of his debts, and as to that part embraced in the mortgage foreclosed in this case, the administrator was the proper party defendant in this proceeding, and neither the heirs' of W. G. Holloway nor the heirs of Mary Holloway were necessary or indispensable parties to such proceeding (Merritt v. Daffin, 24 Fla. 320, 4 South. Rep. 806); and if the bill had only sought a foreclosure against the personal property, no objection could be taken for lack of parties although an accounting was es*532sential to the ascertainment of the amount due the complainant. Inasmuch, therefore, as the decree was unobjectionable in respect of parties as to the foreclosure of the mortgage upon the personal property, we think the decree of this court reversing the decree entirely was erronéous; and that as to that part of the decree below which ascertained the amount due the complainants, and which decreed a foreclosure against the personal property, it should stand, unless otherwise erroneous. It is insisted by appellants that there is error in the accounting, viz: that the credits were not properly applied, and the amount decreed to be due in the mortgage was excessive. We have carefully examined the Various items of the accounts, and are unable to say that the decree upon the facts is clearly erroneous and, therefore, reversible. It is, therefore, ordered, adjudged and decreed that the decree appealed from, in so far as it decrees a foreclosure and sale of the real estate described in the bill and decree, be and the same is hereby reversed, and that in all other respects it is affirmed. It is further ordered, adjudged and decreed that the costs of the appellate proceedings be taxed equally between the appellants and appellees, and that such other and further proceedings to be had as to the making of new parties and the making of other orders and decrees, in so1 far as the real estate involved is concerned, as may be prayed for, and may be consistent with equity practice.