Barco v. Fennell

• Decision Date: 08 October 1888
• Parties: BARCO et al. v. FENNELL et ux.
• Court: Florida Supreme Court

5 So. 9

24 Fla. 378

BARCO et al. v. FENNELL et ux.

Florida Supreme Court

October 8, 1888

Appeal from circuit court, Leon county; DAVID S. WALKER, Judge.

Syllabus by the Court

SYLLABUS

In an action of ejectment, the defendant pleaded not guilty, and afterwards filed, with leave of the court, a special plea to the effect that the plaintiffs claimed title to the land described in the declaration as heirs of the intestate of the defendant, who is still administrator of his estate, and such estate remains unsettled. Upon motion of the plaintiff to require the defendant to elect between the two pleas, he elected to stand upon the special plea. Held, that as the matter set up in the special plea could have been proved under the general issue of not guilty, the court should, of its own motion, have struck out the special plea.

A present right of possession is necessary to a recovery in ejectment.

Ejectment does not lie in behalf of an heir as against an administrator, to recover possession of land to which the latter is entitled as an asset of the estate.

An administrator is not entitled, as against the intestate's heirs, to the possession of land exempt as the homestead of the intestate from forced sale for the payment of his debts under the constitution of 1868, and ejectment will lie in behalf of the heirs against the administrator to recover possession of such land from the administrator, where the land occupied by the intestate as a rural homestead at the time of his death consisted of 160 acres or less, or where prior to his death he has, when actually occupying more than 160 acres, filed a written declaration of his homestead in the probate office of the county judge, under act 1869, s 11 p. 531, McClel. Dig.

Where one or more of the heirs is a minor, or otherwise incapable of binding himself, and the ancestor dies actually residing upon or occupying as his homestead or home place a tract of rural land exceeding 160 acres, and not having filed a written designation of a part thereof as his homestead ejectment will not lie in behalf of such heirs, but the proper remedy for setting aside the homestead is by bill in equity, under section 2, c. 3246, Acts 1881, (section 54, p 166, McClel. Dig.) Whether ejectment would lie in case of such occupation of rural lands if all the heirs were adults, and capable of acting for themselves, quaere.

COUNSEL

S. Pasco, for appellants.

D. S. Walker, Jr., for appellees.

OPINION

MAXWELL C.J.

The plaintiffs below, children of Alfred T. Barco, brought an action of ejectment against his widow and A. M. Fennell, whom she married after the decease of her former husband, to recover certain lands of which he was seized at the time of his death. A plea of not guilty was filed, but subsequently abandoned, to give place to another plea, under an order of court made on motion of plaintiffs, requiring an election between the two. It is alleged for error that the court should not have allowed the second plea to be filed. This plea is that the plaintiffs claim title to the land described in the declaration as the heirs of Alfred T. Barco; that letters of administration were issued to Mary A. E. Fennell, when she was still unmarried and the widow of said Barco, on the estate of said Barco, before the commencement of this action; and that at the time of the commencement of the action she was and is now the administratrix of said estate; and that the said estate remains unsettled. It does not appear that any resistance was made to the filing of this plea, but that on the same day the plaintiffs made their motion to put the defendant to an election between this and their plea of not guilty. The plea was intended as a defense to the whole action, and was an improper plea, inasmuch as, in an action of ejectment, the matters set up, if good as a defense, could have been introduced in evidence under the plea of not guilty; and the court has power in such case to strike out the additional plea, (Wade v. Doyle, 17 Fla. 522;) and we think it was its duty to do so, that the issue might be reduced to 'one simple plea, adapted to the trial of the merits with more facility and certainty.' It is probable the leave to file the plea was given without attention being drawn to its character in the particular action; the liberal practice under our rules ordinarily allowing additional pleas, without question, if good in substance, and not mere repetition in different words of the substance of those already in. But the plaintiffs, instead of moving to strike out the plea, moved that defendants be required to make election between the two; and, this motion having been granted, the plea of not guilty was abandoned, and the additional plea chosen for the defense. The next step was a demurrer of plaintiffs to this plea. The court overruled the demurrer, and this is assigned for the second error. We then have the question presented involving the sufficiency of the plea as a defense to the action. It is apparent that the pleader had in his mind the idea that ejectment would not lie at the suit of heirs against the representative of the deceased ancestor to recover lands left as a part of his estate while the lands were still held for purposes of administration. Lands under our law being assets in the control of the representative of the deceased for the payment of debts, this idea is a correct one; and, so long as the estate remains unsettled, the representative cannot be disturbed in the possession, except by some proceeding connected with the administration itself, by which it may be shown that the lands are not needed for the purpose for which the law committed them to his or her possession. But does the plea meet the requirements of the case? In view of other law applicable to estates, we think it does not. Under the constitution of 1868, when a person died leaving lands on which he had a homestead, that part of the estate was not subject to administration. Baker v. State, 17 Fla. 406. Not being assets for the executor or administrator, the heirs were entitled to it, subject to dower, immediately upon his death. It is therefore necessary that an executor or administrator, claiming to hold lands of the deceased in a representative capacity, should show that they are lands he can hold as assets; and a pleading based on such claim, which does not allege this, is defective. In the case before us this is not done. The plea simply sets up that the lands sued for are claimed by the plaintiffs as heirs of A. T. Barco; that defendant Mrs. Fennell is administratrix of said Barco; and that the administration is unsettled; without any allegation that the lands are subject to administration. If they are not, the plea is bad; for it should assert everything to show that they are held in rightful possession. If, instead of a trial on this special plea, the case were tried under the general issue, and the matter of the plea introduced in evidence, as it might be, it would not avail unless supported by evidence that the lands were such as the administratrix was entitled to hold as subject to administration. She can be in no better position because she has chosen to rest the defense on the special plea; and in doing that she should make her allegations as broad as the proofs required to render the defense complete. As this is not done, we think the demurrer to the plea should have been sustained. For error in overruling the demurrer the judgment must be reversed. And here we might close our opinion; but, as the case will be for trial again, it may be well to express our views of other questions that followed the overruling of the demurrer.

The plaintiffs filed two replications: The first alleges that the lands mentioned in the declaration were not in the possession of the defendants by virtue of letters of administration to Mary A. E. Fennell on the estate of A. T. Barco, but the defendants held and claimed the same as the absolute property of the said Mary. The second alleges that a portion of said lands comprises the homestead of A. T. Barco, and the plaintiffs are his heirs. The defendants demur to both replications; to the first on the ground that such allegation would not entitle the plaintiffs to recover. If the defendants got possession of the lands by virtue of the administration on the estate of A. T. Barco, and that estate is still unsettled, it makes no difference what other claim they may make to title, so far as any rights of the plaintiffs are concerned, if there has been no change in the status of the title by reason of any legal proceeding in the course of administration to effect it. They would still be held to such disposition of the land as upon settlement of the estate, or intervening order in accordance with law, the proper court might direct. Ejectment, therefore, would not be an appropriate action to ascertain and determine the rights of the parties; and for this reason we think the demurrer to the first replication was properly sustained. To the second replication the demurrer objects--First, because a portion of the land described therein (160 acres) includes 122 1/2 acres described in the declaration as having been set aside as the dower of Mrs. Fennell, (formerly Barco.) This is an allegation of fact not clearly appearing from the declaration and replication, and is not proper matter for demurrer. But the second cause of demurrer to this replication is more to the...