Coe v. Finlayson

• Decision Date: 06 June 1899
• Citation: 26 So. 704,41 Fla. 169
• Parties: COE v. FINLAYSON.
• Court: Florida Supreme Court

26 So. 704

41 Fla. 169

COE v. FINLAYSON.

Florida Supreme Court

June 6, 1899

Appeal from circuit court, Jackson county; William D. Barnes, Judge.

Bill by Daniel Burnett against J. M. Coe, administrator de bonis non of W. E. Coe. On the death of plaintiff, James A. Finlayson his administrator, was made a party. Decree for complainant and respondent appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. A mortgage on real estate, under the laws of this state, is a mere lien on the land to secure the payment of money, and the mortgagee can maintain no action thereunder for possession until he becomes the owner at foreclosure sale.

2. Seven years' adverse possession of land, based upon a paper title, not good as an independent conveyance, but sufficient to constitute a basis of an adverse holding, is not the period of limitation prescribed by the statute to defeat a mortgage claim, but 20 years is the prescribed period, and applies whether the adverse holder claims under title from the mortgagor, or under an independent source of title.

3. A decree in foreclosure proceedings, ascertaining the amount that the mortgage was intended to secure, and declaring a lien on the land mortgaged to secure same, is not a money decree, within the meaning of the statute prescribing a limitation of 20 years for actions founded on judgments or decrees; and such a decree does not terminate the foreclosure suit, or give the complainant any rights to possession of the land until he obtains a deed at foreclosure sale that will be hostile to the defendant in foreclosure.

4. As a general rule, a suit may be revived at any time before the cause of action is barred by the statute of limitations applicable to it; and, in case of the abatement of the suit by the death of a plaintiff, the statute will not run until administration on his estate has been taken out, or in the absence of a person who is capable of suing.

5. C commenced suit to foreclose a mortgage on real estate against H. and G., mortgagors, and obtained a decree of foreclosure in December, 1869. C. died April 7, 1871, before any proceedings were had under the decree, and no administration was had on his estate or further proceedings taken in the suit until the 2d of April, 1891, when there was a revivor in the name of an administrator of C., and proceedings commenced to execute the decree. B. took adverse possession of the mortgaged lands in 1879, and was holding adversely when the suit was revived, as to which proceeding he was not made a party. Held, that there was no statute of limitations in operation when C. died, in April, 1871, and none had then begun to run; that the statute of limitations of 1872 did not begin to run until after the appointment of C.'s administrator, in 1891; and that B. had acquired no title by adverse possession against the mortgage claim.

COUNSEL

John H. Carter, for appellant.

Benj. S. Liddon, for appellee. A bill was filed in this case in July, 1891, by Daniel Burnett, who died intestate after a decree in his favor and after an appeal to this court, but before the submission of the case here. The appellee voluntarily came in and was made a party, and publication was made as to the heirs of Burnett. The bill alleges, substantially: That Daniel Burnett was owner and in possession of the N.W. 1/4 and S.W. 1/4 of section 16 township 3 N., range 7 W., situated in Jackson county. That he held said lands by paper title as follows: A deed from Robert J. Pittman, sheriff of Jackson county, of date February 3, 1879, to W. J. Griffin. That this deed was made to Griffin by mistake. Pittman duly advertised the lands for sale, and sold them at public sale, and Burnett sent the money by Griffin to buy the lands, but by mistake of Griffin or Pittman the deed was made to Griffin instead of Burnett. That Griffin held said paper for some time as agent of Burnett, when it was transferred to him by the indorsement on the back, which both parties regarded at the time as sufficient transfer, and that Griffin never claimed any interest in or title to said lands by virtue of said deed, but held and claimed that the same vested in Burnett a title to the lands. The original deed from Pittman to Griffin was attached as an exhibit to the bill, and made a part thereof. It is as follows:

'State of Florida, Jackson County. Know all men by these presents, that the county of Jackson, in the state of Florida, for and in consideration of the sum of twenty cents to the sheriff of said county by W. J. Griffin, the receipt whereof is hereby acknowledged, do give, grant, bargain, sell, and convey unto said W. J. Griffin, his heirs and assigns, the following described property: The S.W. 1/4 of section 16, township 3, range 7 north and west,--together with all the improvements, hereditaments and appurtenances thereto belonging. To have and to hold the same unto the said W. J. Griffin, his heirs and assigns, in as full and perfect a manner as the county of Jackson has to said lands.

'In testimony whereof, I, Robert J. Pittman, sheriff in and for said county, by virtue of an order passed by the county commissioners of said county on the sixth day of January, 1879, do hereunto affix my hand and seal on this 3rd day of February, A. D. 1879.

'[Signed] Robert J. Pittman,

'Sheriff Jackson County. [Seal.]

'Signed, sealed, and delivered in presence of

'John Connely,

'Frank Philips.'

Indorsed: 'Sheriff deed W. J. Griffin. Transferred to D. Burnt. Paid.'

The bill further alleges that Burnett was of limited education, and knew nothing of the law or forms regulating the conveyances of real estate, and afterwards, being informed that Griffin had not made him a sufficient title to said land, he obtained from him, as a deed of conveyance of said lands, the following written instrument, exhibited with and made a part of the bill, viz.:

'State of Florida, County of -----. 4/30/84. Know all men by these presents, that we, the undersigned, have sold and given unto the possession of Daniel Burnett all our claim in and right to the following described land, and all improvements thereon. Description of land, viz.: W. 1/2 of section 16, township 3 north, range 7 west. Signed by W. J. Griffin, E. Griffin. Witnessed by Mary A. Sansom, B. T. Sansom.'

It is further alleged that, immediately upon the execution of the deed by Pittman to Griffin, Burnett went into possession of the lands under claim exclusive of all other rights, founding same upon such written instruments as being conveyances of the lands, and that he had ever since entering into possession been in continued use and occupation, and held open, notorious, exclusive, and adverse possession, of the lands, under a claim of title and ownership thereof in fee, and was in such possession at the time of filing the bill; that after the execution of the paper from Griffin to Burnett on April 30, 1884, he, being in possession under the former deed from Pittman to Griffin, continued to hold and maintain possession of said lands in the same manner as alleged under the said sheriff's deed, founding his title upon said deed as being a conveyance of said lands.

It is also further alleged that Burnett had his home for himself and family upon said lands, and lived upon the same as his home for more than 11 years, and that the same had been usually cultivated and improved, and a large portion of same had been protected during all of said time by substantial fences and inclosures; that all of said lands had for the 10 years past constituted two known single farms, one held and cultivated by Burnett personally, and one by one Sansom as his tenant, and had been partly improved by the clearance of land, erection of cabins, fences, and otherwise, and that a portion of said farm had been left not cleared and not inclosed, according to the usual course and custom of the country adjoining, to be used for the purpose of fencing, timber, firewood, and otherwise; that the use, occupation, possession, and adverse holding by Burnett as alleged had been adverse to the claim of E. P. Hudson and F. W. Gilbreth, hereinafter mentioned, as well as all other persons claiming said lands.

It is further alleged that Mary E. Coe, administratrix of W. E. Coe, deceased, obtained a decree of foreclosure on the 20th of December, 1869, in the circuit court of Jackson county, against Hudson and Gilbreth, upon a large lot of land, including that already described; that said decree was allowed to become dormant, stale, and antiquated until about April 2, 1891, when the defendant, as administrator de bonis non of W. E. Coe, deceased, began proceedings to revive same for the purpose of selling said lands under said foreclosure decree, and obtained an order empowering Frank Philips, one of the masters in chancery of the court, to sell said lands, including those of Burnett; that Philips was proceeding to execute said order, and had advertised said lands for sale on the 6th of July, 1891.

It is stated in the bill that Burnett admitted that Hudson and Gilbreth at the time of the said foreclosure decree had some title and interest in said lands, but it is alleged that said title and interest had long since ceased, and title had vested in complainant as alleged, and that, if defendant was permitted to sell said lands, it would cast a cloud upon Burnett's title, and greatly injure him.

Defendant was required to answer under oath all the allegations of the bill, and it was prayed that he be enjoined from selling or in any manner interfering with Burnett's lands by virtue of said foreclosure decree.

A temporary injunction was granted, and defendant answered substantially as follows: It was true that complainant Burnett claimed title to the lands described in the bill in...