Finlayson v. Love (44 Fla. 551, 1902)

Per Curiam.

Defendant in error instituted a suit of ejectment against Silas Smith in the Circuit Court of Jackson county to recover possession of the N. W. 1-4 of the N. W. 1-4 of section 33, township 5 N. .range 10 W. of Tallahassee meridian containing about forty acres.

To the declaration, besides the plea of not guilty the defendant Smith filed an equitable plea, to which there was interposed a demurrer. Subsequently plaintiff, filed a suggestion of the death of defendant, Silas Smith, and also that James A. Finlayson, Sheriff of Jackson county bad been appointed ex-officio administrator of his estate.. Finlayson appeared and filed a plea as follows, viz: that the land described in plaintiff’s declaration is less than, one hundred and sixty acres; that the deceased Smith in his lifetime and at the time of his death was the head of a family, consisting of himself and wife who is still living; that said Smith, together with his wife, for many years prior to and at the time of his death actually resided upon the. aforesaid land and it was the actual domicile, home and permanent place of abode of said Smith and his family at the time of his death, wherefore' defendant submits that he is not a proper party defendant to the suit, and asks the judgment of the court whether he shall be compelled to plead further. A demurrer to this plea on the ground that it constitutes ho defense to the action was* sustained by the court. In the order sustaining the demurrer it was further directed that “Hannah Smith be made a party to this suit, and the said Hannah Smith being present in court in person and by counsél, and consenting to be made a party defendant, it is hereby ordered that she be made a party defendant and be allowed to defend the same as if she had been an original party.

The demurrer to the equitable plea was then heard and sustained by the court, the order of the judge reciting that the defendants had adopted the pleas filed by Silas Smith in his lifetime.

. A trial was had upon the plea of not guilty interposed by the original defendant, and a verdict rendered for plaintiff, upon which judgment was entered in his favor against James A. Finlayson, as sheriff and ex-officio ad-, ministrator of Silas Smith, deceased, and Hannah Smith.

The verdict stated that plaintiff had a fee simple title in and to the latnd described, the same as in the declaration, and one cent mesne profits, and the .judgment describes the same land and was for one cent mesne profits besides costs of suit, taxed at $11.71.

Assignments of error are based upon the rulings of the court sustaining the demurrers to the pleas and excluding certain evidence offered by defendants on the trial.

The court' is of' the opinion that it does not sufficiently appear from the record that necessary parties defendant were before the court to enable it to determine the questions sought to be adjudicated. The sole original defendant, Rilas Smith, died, and plaintiff proposed to revive the suit against his administrator. The latter filed a plea which we construe as a defense to the suggestion to make him a defendant, and it thereby appears that his intestate, Silas Smith, was prior to and at the time of his death the head of a family residing on ^the Jand sued for, consisting of less than one hundred and sixty acres, situated in Jackson county, Florida, as his home and place of permanent abode. The land, according to the theory of the plea, was the homestead of the intestate, Smith, and upon his death descended to his heirs at, law exempt from his debts. The administrator could never take, or be entitled to fake possession of the homestead land, or have any interest in; or concern therewith, and conceding it to be a homestead he could not be a proper party to an ejectment suit brought to fry the title to or recover possession