Scott v. Jenkins

• Decision Date: 29 November 1902
• Citation: 46 Fla. 518,35 So. 101
• Parties: SCOTT, Sheriff, et al. v. JENKINS et al.
• Court: Florida Supreme Court

35 So. 101

46 Fla. 518

SCOTT, Sheriff, et al. v. JENKINS et al.

Florida Supreme Court

November 29, 1902

Appeal from Circuit Court, Jackson County; William D. Barnes, Judge.

Bill by F. J. Jenkins and J. T. Davis, Jr., against Andrew Scott sheriff, and others. Decree for plaintiffs, and defendants appeal. Reversed in part.

Syllabus by the Court

SYLLABUS

1. A bill was filed by appellees J. & D. to foreclose a mortgage on real and personal property in February, 1892, against the appellants, including Mary G. Holloway, then living. It is alleged in the bill that W. G. Holloway in his lifetime conveyed the mortgaged real estate to Mary G. Holloway. On October 8, 1892, and before the issues were made up, Mary G Holloway died, and in January, 1893, her administrator was made a party defendant to the suit, and the cause proceeded to final decree without her heirs being made parties. Held that under section 1917 of the Revised Statutes of Florida which went into effect on the 13th day of June, 1892, the heir or heirs of Mary G. Holloway were necessary parties to the suit, so far as the foreclosure upon the real estate was concerned.

2. Where a bill alleges that real estate was conveyed, as in the first headnote, the fact that when the instrument purporting to be a conveyance is offered in evidence it appears to have no seal, does not support the contention that neither Mary G Holloway nor her heirs have any interest in the real estate thereby conveyed or attempted to be conveyed.

3. Complainants having filed a bill, as stated in the first headnote, acquired no vested interest in the statutory power which the law anterior to the enactment of the Revised Statutes conferred upon executors and administrators in relation to the real estate of decedents, and the repeal of that law, pending the suit, and before final decree, by the provisions of the Revised Statutes contained in section 1917, and the statute enacting the same, took away the statutory power of an executor or administrator in regard to such real estate under such antecedent law, and substituted therefor such authority and power as is contained in said section 1917.

4. When a final decree of foreclosure upon the real and personal property is made in a cause, the facts being such as are stated in the previous headnote, such a decree is erroneous so far as it purports to be a foreclosure of the real estate, because of the absence of necessary parties having an interest in the real estate, but is valid as a foreclosure of the personal property.

COUNSEL Benj. S. Liddon, for appellants.

Francis B. & John H. Carter, for appellees.

OPINION

PER CURIAM.

CARTER J., being disqualified, took no part in the decision of this cause, but by consent in writing filed in the cause it was agreed that it should be disposed of by the two remaining justices, who referred the cause to the commissioners, Messrs. HOCKER and MAXWELL, for consideration, who report the same, recommending reversal, for the reasons hereinafter stated.

In February, 1892, appellees filed a bill against Andrew Scott, sheriff of Jackson county and ex officio administrator of the estate of W. G. Holloway, deceased, Mary Holloway, and R. H. Walker, T. M. Espey, and B. G. Farmer, partners under the firm name of Walker, Espey & Farmer, for the purpose of foreclosing a mortgage executed by W. G. Holloway and wife in his lifetime to appellees, Jenkins and Davis. The mortgage was given to secure the payment of a certain obligation in writing and the amounts therein named, and also all other sums of money or other articles advanced to said W. G. Holloway by Jenkins and Davis before the 1st day of October, 1891.

The property described in the mortgage is certain real estate situated in Jackson county, Fla., and the crops of every kind grown by W. G. Holloway, or in which he had an interest, in the year 1891, and four head of horses and mules. It also included a stipulation that W. G. Holloway would deliver to the mortgagees all notes, mortgages, and other indebtedness which should be taken by Holloway in his mercantile business before the maturity of the obligation secured by the mortgage.

It also alleged that, in addition to the amounts mentioned in the written obligation, complainants advanced to Holloway, prior to October 1, 1891, the sum of $4,895.49, and subsequent to that date they advanced to him the sum of $4,873.71, and that he had paid the sum of $2,656, which was credited on the mortgage indebtedness, leaving due thereon, with interest to December 14, 1891, the sum of $3,891.32, and that between October 1 and December 6, 1891, Holloway paid in money and cotton and other produce the sum of $4,384.64, which amount was credited upon the advances made after October 1, 1891, leaving a balance due upon open account of $489.07. The bill makes certain allegations in reference to the payments made and their application.

It is also alleged, among other things, that Holloway, just prior to his death, made a pretended sale and transfer of all his notes, accounts, and claims due to him, including those agreed to be turned over to complainants, to defendants Walker, Espey & Farmer, and also pretended to sell to them the said horses and mules, which went into their possession.

It is also alleged that on the 11th day of December, 1891, W. G. Holloway was insolvent, and, intending and contriving to defraud complainants and his other creditors, conveyed by certain deeds and bills of sale to Mary Holloway all the lands he owned, including those embraced in the mortgage, in consideration of certain pretended indebtedness from him to her, and also conveyed to his stepson, the son of Mary Holloway, and to his brother, his stock of merchandise, of the value of $2,500, in consideration of certain pretended indebtedness to them. All of the defendants appeared and filed a demurrer on the ground that the bill did not state a case entitling complainants to the relief prayed. This demurrer was overruled September 7, 1892.

Subsequently defendants Scott, Walker, Espey, and Farmer filed an answer, in which they set up the fact by way of plea that Mary Holloway had died on the 8th day of October, 1892. The answer denied the allegations of fraud in the bill, and set up certain alleged defenses in reference to payments on the mortgage indebtedness and the application of payments alleged in the bill. Counsel for complainants suggested the death of Mary Holloway and the appointment of J. A. Finlayson as her administrator, and moved the court to make him a party defendant in the place and stead of Mary Holloway, deceased. The court ordered in January, 1893, that the cause be revived against J. A. Finlayson as administrator of Mary Holloway, deceased, and that he be made a party defendant, with leave to answer the bill. This defendant filed an answer in part adopting the answer of his codefendants, and in addition admitted that W. G. Holloway, in his lifetime, executed on the 11th day of December, 1891, a deed of conveyance to Mary Holloway of the property alleged in the bill. It is denied that said deed was contrived or intended to defraud the creditors of W. G. Holloway, but was bona fide for the consideration of $3,600, due from Holloway to said Mary. After replications filed and proofs taken, the court entered a decree in effect that there was due to the complainants upon the mortgage indebtedness the sum of $5,029.51 for principal and interest, including $457.22 adjudged for complainants' attorneys' fees under the mortgage; that the said mortgage was valid and unpaid to the extent named, and that the complainants do have and recover from the defendant Andrew Scott, as sheriff and ex officio administrator of the estate of Wm. G. Holloway, deceased, the aforesaid sum of $5,029.51, together with all costs, and that said defendant do pay the same to complainants within five days, and in default thereof that the said defendants and each of them, and all persons claiming by, through, or under the said Mary Holloway and William G. Holloway, deceased, be debarred and foreclosed of all right and equity of redemption in the mortgaged real estate (describing it); and that the two horses and a mule in the possession of the defendant Robert H. Walker be delivered by him within 30 days to John Milton, who was appointed special master to enforce said decree; and in default thereof that he, the said Walker, should pay to said master in lieu of said property $75 for the gray horse, $50 for the stallion horse, and $30 for the mule colt in money; and that the said master should sell all of said property, including the lands, at public auction, after the legal publication; and that the proceeds thereof be paid first to the discharge of the costs and fees of the special master, and then to the complainants or their solicitor in full satisfaction of said decree; and that said master report said sale to the court for confirmation before executing conveyances to the purchasers, and that after confirmation of said sales that he do put the purchasers in possession of the property conveyed to them respectively. The decree reserved certain other questions for future disposition after the sale of the properties ordered to be sold.

At the threshold of the investigation we are confronted with the question of an absence of necessary parties to the proceeding. The bill alleges, and the answers of the defendants admit, that the lands embraced in the mortgage were conveyed by deed to Mary Holloway by William G. Holloway in his lifetime, but subsequently to the execution and record of the mortgage. The answer also alleges that Mary Holloway died on or about the 8th day of October, 1892, subsequently to the date that our Revised Statutes went into effect. The...