Coe v. Finlayson, 41 Fla. 169

Coe v. Finlayson

41 Fla. 169 | Fla. | 1899

Mabry, J.:

The decree appealed from in this case was rendered on bill, answer and replication. The bill alleges adverse possession of the lands in question by Daniel Burnett for more than seven years prior to their attempted sale under a revived decree in favor of appellant, as administrator de bonis non of W. E. Coe, deceased, and against E. P. Hudson and F. W. Gilbreth.

It is stated in bill that Dan’l Burnett held the lands in question by a paper title particularly described and set out, but it is not alleged that this paper title was of itself a valid conveyance of the title, nor is there any basis, furnished by said paper title, or the allegations of the bill in reference to it, for a conclusion that complainant relied upon such instruments as conveying of themselves a valid and indefeasible estate. If any more than we have stated can be claimed under the allegations of the bill as to the legal sufficiency of the paper title, it can not avail on this hearing as the answer denies that Burnett, or Griffin through whom he claims, ever had any legal *179title to the lands. It is alleged, however, that for a period of more than seven years prior to the filing of the bill, Burnett maintained an adverse possession of the lands under the paper title as being a conveyance, and that such possession had been open, continuous and exclusive, and the answer concedes this to be true, as it distinctly admits that Burnett claimed title to the lands in the manner and from the sources alleged.

By statute in this State, seven years adverse occupancy of land, under conditions prescribed, confers title, and this title, when perfected, may be enjoyed and protected. Seymour v. Creswell, 18 Fla. 29. Basing a claim of title to the lands in Daniel Burnett by an adverse occupancy for the statutory period of seven years, the bill seeks to enjoin a sale under a decree of foreclosure in a suit originally commenced by Mary E. Coe, administratrix of W. E. Coe, deceased, against Hudson and Gilbreth, and revived in the name of appellant as administrator de bonis non of W. E. Coe, deceased. It is alleged, and admitted, that the administratrix Mary E. Coe, obtained a decree of foreclosure in the suit on the 20th of December, 1869, and that there were proceedings to revive the decree on-April 2nd, 1891, in the name of the appellant. The facts in reference to the revivor, so far as we can consider them on this appeal, are rather meager. The suit was against Hudson and Gilbreth, and we must assume in the absence of any showing to the contrary that the decree was regularly revived as to them. Whatever defences they may have had to the revivor proceedings should have been made then, and the rights acquired and obligations imposed under the revived decree, so far as the parties thereto are concerned, can not be questioned in a collateral way. Complainant, Daniel Burnett, is not shown to have been a party to the revivor proceedings and his assertion of superior right by ad*180verse occupancy is not only against Hudson and Gilbreth, the holders of the legal title, but all others, including the holders of the mortgagee claim against them. Counsel for appellees assume the position that an adverse occupancy of the lands for seven years, a sufficient period under the statute to' bar the claim of right of Hudson and Gilbreth, will also bar all other, rights. This contention can not be sustained under the former decisions of this court. It has been held here that our statute of limitations applies to equitable as well as legal demands. Browne v. Browne, 17 Fla. 607, S. C. 35 Am. Rep. 96; Jordan v. Sayre, 24 Fla. 1, 3 South. Rep. 329. The tenth section of the limitation statute of 1872, section 1294, Revised Statutes, contains a provision that actions other than those for the recovery of real property can only be commenced within twenty''years on an action upon any contract, obligation or liability founded upon an instrument of writing under seal, and the same provision is made in reference to actions upon a judgment or decree of any court of the United States, or of any State or Territory within the United States. By the Revised Statutes the twenty-year limitation as to' judgments or decrees, applies only to' judgments or decrees of a court of record of this State. It was held in Browne v. Browne that a suit in equity to sell land mortgaged and apply the proceeds to the payment of a note secured by the mortgage was an action upon a contract founded upon an instrument in writing under seal, within the meaning of the limitation statute, and that such suit •could be maintained in equity although an action at law upon the note was barred by other provisions of the statute. The decision in Jordan v. Sayre was that when a mortgage is in law, as well as in equity, simply a lien on the land, and gives no right of possession of the same, the mortgagor’s possession *181during the period allowed by the statute for instituting a suit of foreclosure is not adverse to the rights of the mortgagee, but is subordinate thereto; and the same is true as to the possession of the mortgagor’s grantee, although such grantee hold under covenants warranting the title. A mortgage on real estate, under our system of law, is nothing more than a lien on the land to secure the payment of money, and the mortgagee can maintain no action for possession until he becomes the owner at foreclosure sale. Cook v. Knowles, 38 Mich. 316. It is clearly the law with us, we think, that the limitation period of seven years adverse possession does not apply to a mortgage claim duly perfected.

It only remains to enquire if there be any other limitation of which appellees can avail themselves to enjoin the sale of the lands involved in this suit. It is conceded that a foreclosure decree was rendered in the case on the 20th of December, 1869. Such a decree, though considered the final decree in foreclosure for some purposes, is not a money adjudication in the sense of a judgment for money, but only a judicial-ascertainment of the amount which the mortgage was intended to secure. Scott v. Russ, 21 Fla. 260; Hanover Fire Ins. Co. v. Tomlinson, 3 Hun, 630. The foreclosure decree did not terminate the suit, as it gave the complainant no- right to the possession of the land, nor could he have execution thereon for the sale of any property. His right was to have the property described in the mortgage sold under the direction of the court to satisfy the mortgage debt, and he could acquire no rights in the land hostile to defendants in the foreclosure suit until he obtained a deed under the foreclosure sale. Rockwell v. Servant, 63 Ill. 424. The record presents the case of the revivor of a foreclosure decree before the final termination of the suit, and, as before stated, all questions of limitations or *182defenses, as between the parties to the suit, must be considered as finally settled so far as the present suit is concerned. There are authorities which hold that the statute of limitations is a personal privilege, of which the debtor alone can avail himself at his option. Other authorities hold that one who has acquired the legal title, subsequent to the demand which may be barred by the statute, may avail himself of such defense when sued in the foreclosure of the equity of redemption, but, as held in Ewell v. Daggs, 108 U. S. 143, 2 Sup. Ct. Rep. 408, though the subsequent purchaser, or one acquiring the legal title, may set up the plea of the statute, it must he shown that the action is barred as between the parties to the debt, because as the owner of the equity of redemption it is that debt he has to pay. Sanger v. Nightingale, 122 U. S. 176, 7 Sup. Ct. Rep. 1109.

Conceding that the appellees have the rig'ht to show an absolute bar of the statute of -limitations as between the parties to the foreclosure suit at the time of the revivor of the decree we are of opinion that there is an absence of such showing in the record before us. The bill states that the foreclosure decree was rendered in December, 1869, and that said decree was allowed to become dormant, stale and antiquated until about the 2nd of April, 1891, when appellant, as administrator de bonis non, began proceedings to revive same for the purpose of selling the lands under the decree. In the face of the order of a competent court reviving the suit against Hudson and Gilbreth, it devolved upon the complainant below to show that at the time of the revivor the suit was barred, but the bill -does not state that there was no suspending cause of the statute intervening the rendition of the decree in 1869, and the revivor in 1891.

In response to- the charge in the bill in reference to the foreclosure decree in December, 1869, the answer *183states that the complainant therein, Mary E. Coe, died on the 7th of April, 1871, and no further action was taken in the cause until the order on April 2nd, 1891, appointing a master to carry out the foreclosure decree, and that neither the complainant nor his grantors could under the law become seized and possessed of the lands adversely between the death of Mary. E. Coe and the appointment of her successor in October, 1890; and that Mary E. Coe left no representatives in law competent or qualified to prosecute said suit to final determination until respondent was appointed administrator de bonis non as stated. From this statement it appears that the foreclosure suit was revived within twenty years from the death of the complainant, and that during this entire time, except from October, 1890, to April 2nd, 1891, there was no representative to proceed with the suit.

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, and in case of the abatement of the suit by the death of the plaintiff, the statute will not run until administration on his estate has been taken out. Perry v. Jenkins, 1 Mylne & Craig, 118; Mason v. Hartford, P. & F. R. Co., 19 Fed. Rep. 53; Story’s Eq. PI. §831. The general rule of construction is that a statute of limitations will not be held to run in the absence of a person in being who is capable of suing. Murray v. East India Co., 5 Barn. & Ald. 204. The original complainant, Mary E. Coe, died in April, 1871, before the enactment of the limitation statute of 1872, and at the time of her death the statute had not begun to run. When the suit was revived no bar of the statute had attached, and hence complainant below, who took possession of the land after the commencement of the foreclosure suit, failed to show a title by adverse posses*184sion against appellant as administrator de bonis ñon of W. E. Coe, deceased. We have proceeded on the hypothesis that it sufficiently appears from the pleadings that Mary E. Coe died in April, 1871, and administration de bonis non on the estate of W. E. Coe, deceased, was granted not earlier than some time in October, 1890. This view of the case is as favorable tO' appellees as can be taken; for if we can not proceed on the view that Mary E. Coe died then, there is nothing to show that the suit was not pending in the court from its institution, and there is no statute of limitation to a pending suit.

It is ordered that the decree appealed from be reversed, Avith directions to dismiss the bill.