Deans v. Wilcoxon

25 Fla. 980 | Fla. | 1889

Raney, C. J.:

I. The complainants, as shown by the statement, claim to be the heirs and distributees of Jacob Foreman, and the parties defendant against whom relief is sought are Hartridge and L’Engle, as administrators of Sanderson, who, at his death, in June, 1871, was administrator de bonis non of Foreman, under an appointment made August 6th, 1860, and George Wheaton Deans, as administrator de bonis <ion of Foreman, by appointment made February 21st, 1881, and the surieties on Deans’ bond as such administrator, and the Freedman’s Savings and Trust Company and Knox, its Commissioner.

(a) The grounds of relief set up as to the administrators of Sanderson are substantially as follows:

The sale of Lot 7, of Block 31, made by Mrs. Foreman, as administratrix of Jacob Foreman, under an order of the Probate Court of September 27th, 1856, and the conveyance of the same and lot 8 by Sanderson, as administrator de bonis non, in execution of such incomplete and alleged sale, and the conveyance of said lots to Sander-son individually. It is charged in the bill that lot 8 was never sold by the administratrix, or advertised or offered by her for sale, or reported by her as having been sold, advertised or offered for sale, notwithstanding the recitals to the contrary int he deed from Sanderson, as administrator de bonis non, and that the Probate Court had no jui'isdiction to order a sale of these lots, as the petition did not allege the exhaustion of personal assets, but on the contrary showed that the personal property had not been exhausted. The claims or demands, for the payment of which the sale was made by the administratrix are also alleged not to have been debts or demands of, nor subsisting debts or demands against Foreman’s estate, nor such debts or demands as upon a petition setting up the jurisdictional facts, would make a lawful predicate for ordering a sale of real estate.

It is charged also that' Sanderson, upon being appointed administrator de bonis non, possessed himself of funds of the estate in the State of New York, amounting to several thousand dollars, and unadministered property in Florida, ánd that he died without having made any settlement whatever of his administration or any distribution, either partial or final, of Foreman’s estate, to those interested therein; and that at his death he was in possession of said lot No. 7, and, claimed the fee thereto, he having, however, on February 7, 1870, conveyed, in his own right, lot.No. 8 mentioned above, to the Freedman’s Savings and Trust Company. His administrators, it is alleged, have made no settlement of his administration of Foreman’s estate.

(b) The grounds of relief against Deans, as administrator de bonis non, aforesaid, and his sureties, and the Freedman’s Savings and Trust Company, and Knox, the commissioner of such company, are, in brief, that on April 23d, 1881, Deans, as such administrator, petitioned the County Court for a sale of lot 8 to pay Foreman’s debts, and on May 6th obtained an order as prayed, and on June 6, one Driggs, as commissioner, appointed by the County Court, exposed the lot for sale, and one Lockwood, the agent of the Freedman’s Savings and Trust Company, bid it off at the price of $13,-000, and the sale was reported to the court as having been made to “ Augutus E. Bass and the heirs and representatives of Job Bass, deceased.” No further action, it is stated, has been taken by the County Court in the premises.

It is alleged: That at or before the sale just mentioned, the Freedman’s Savings and Trust Company, or its Commissioner, surrendered the possession of lot 8 to Deans, as such administrator, and that he still retains possession of the same as assets of Foreman’s estate, and is receiving the rents and profits of such possession, and that the Trust Company recognizing the invalidity of its title to lot 8, obtained through the alleged sale by Mrs. Foreman as administratrix, and the conveyance from Sanderson in completion of such sale, and the reconveyance to Sanderson individually, and his deed to the Trust Company, and desiring to acquire the title residing in the heirs of Foreman, procured from the grantors who had conveyed lot 8 to Sanderson, an assignment of the debt subsequently set up by Deans’ petition, and procured Deans to take out letters of administration and apply for the sale. That no purchase money has been paid on the bid, nor was any intended to be paid by those making or interested in it, other than a credit upon the alleged debt, for the payment of which the sale was prayed and ordered, and which has been assigned as alleged.

It is charged that at the time of Sanderson’s appointment as administrator, there was no valid subsisting debt or claim of any kind against the estate of Foreman; and that the County Court had no jurisdiction in the proceedings instituted by Deans to determine whether or not the alleged debt was established as a predicate for said order, if said debt or claim ever existed, which is denied. The reasons given by the bill for the last allegation are stated in a subsequent subdivision of this opinion.

It is also argued that “if there were valid and subsisting debts at the time of Deans’ application for an order to sell, it could not be determined by said County Court that there was a necessity for the sale of the lands for the payment of the debt, or that the personal estate had been exhausted or was insufficient to pay debts, or that the debt exceeded the value of the personal estate, until there had been a final settlement of said administration of Elizabeth, and that of Sanderson in person or by their representatives. ” When the order was granted (the bill alleges) there was abundant evidence in the files of said court that each of said administrations W£S outstanding and unsettled.

The bill expressly states, however, that the complainants are willing that the sale made of lot 8 by the commissioner under the order obtained by Deans should stand, provided the Freedman’s Savings and Trust Company, or the parties in whose names the bid is reported to have been made, pay into the Circuit Court of Duval county, where the bill under consideration is filed, the purchase money so bid, ($13,-000) to be distributed by such Circuit Court to those entitled thereto; and complainants offer to ratify the sale upon the payment of the same to be disposed of by the order of such court.

The prayer as to the administrators of Sanderson especially, is that the sale evidenced by Sanderson’s deed as administrator de bonis non, conveying lots 7 and S, be set aside and held for naught; that they fully settle in this court Sander-son’s administration of Foreman’s estate, and account for all the assets their intestate received, and was or is chargeable with, including lot 7.

The prayer of the bill as to Deans and the Trust Company and Knox specially, is that Deans, as administrator de bonis non, account for all the assets he has received and for which he is chargeable, and that the Trust Company, or Knox, its commissioner, pay into the Circuit Court the sum of $13,000, .bid for lot 8, or failing therein the sale be set aside and dedal ed of no effect.

The bill also prays for a final settlement and distribution of Foreman’s estate, and that the alleged claim of December 20th,1838,setup in each of the petitions as adebt of Foreman, for the payment of which a sale was sought, whether in the hands of the Freedman’s Savings and Trust Company or of A. E. Bass and the representatives of Job Bass, be declared not to be valid and subsisting claim as against complainants, as to said lots 7 and 8, descended to them from Jacob Foreman, or such claim,if valid, asean be enforced only upon a final settlement of the said Elizabeth Foreman’s administration of Jacob Foreman’s estate. That upon such settlements, the property, real and personal, of Jacob Foreman’s estate, on hand, and the money balance that may be found due said estate, be delivered to complainants, as next of kin of said Jacob, and they be quieted in their enjoyment and possession.

The bill'was demurred to by Deans and his sureties as not stating a case entitling them to relief in a court of equity, and as multifarious and by the administrators of Sanderson as multifarious, and as deficient in parties defendant, as the heirs of Sanderson, are not made defendants, and as stating no matter for equitable relief.

The position of the complainants is that they are the sole heirs and distributees of Jacob Foreman ; that his administrix, Elizabeth Foreman, had paid all of his debts prior to her death, and that the Elijah Bass estate claim of December 20th, 1838, was not a subsisting debt of Foreman’s estate when the sale made by her took place, and has not since been. They claim that they are entitled to whatever there may be of Foreman’s estate existing either in the same form in which he left it, or in the shape of indebtedness by Sanderson’s estate, growing out of an alleged devastavit committed by Sanderson.

II. The first question to be disposed of is that as to the jurisdiction of the Circuit Court, as a Court of Equity, in the matter of the settlement of the estates of deceased persons under the Constitution and laws of this State.

The Constitution of 1868 gave the Circuit Courts “ original jurisdiction of all cases of equity,” and the County Court “full surrogate or probate powers, but subject to appeal;” and it was held in Ritch & Co., vs. Bellamy, administrator, et al., 14 Fla., 557, that in the absence from a case of special equities which the County Court could not administer, such court, and the Circuit Court had concurrent jurisdiction in the settlement of estates. That where there has been a suggestion of insolvency, under the statute, in the County Court and creditors have filed their claims, the Circuit-Court should not take jurisdiction of the settlement of the administration at the suit of creditors, in the absence of circumstances calling for the exercise of chancery powers as distinguished from probate or surragate powers, or unless for some special reasons it is made to appear that the County Court could not administer adequate and complete relief between the parties. The bill was filed by mortgage creditors of an intestate, and alleged the existence of other mortgage creditors; and surcharged and falsified the accounts of the administrator, and alleged waste and neglect upon his part, and that upon a fair and just accounting the estate would be found solvent; and it was held, notwithstanding the complainants had proved and filed their claims in the County Court under the suggestion of insolvency, that the case was one of equitable jurisdiction.

The amendments to the Constitution, which were adopted at the election held on May 4th, 1875, vested the Circuit Court with “original jurisdiction in all cases in equity.” * * and with “ appellate jurisdiction of matters pertaining to the probate jurisdiction and the estates and interests of minors in the County Courts, and of such other matters as may be provided by law,” Section 8 of Article VI; and gave to the County Court “ power to take probate of wills, to grant letters testamentary and of administration and guardianship, to attend the settlement of estates of decedents and of minors, and to discharge the duties usually pertaining to courts of probate, subject to the direction and supervision of the appellate and equity jurisdiction of the Circuit Court as may be provided by law,” Section 10, Article VI. In Sanderson vs. Sanderson’s Administrators, 17 Fla., 820, it was claimed on appeal that the case should be remanded to the County Court. The bill alleged that there had been no final settlement in the County Court, and that no annual settlements had been made, and charged that claims illegal in their character had been paid, also mismanagement of the estate, and prayed, inter alia, a distribution, and the proofs disclose that the annual accounts had not been passed on when the bill was filed. The equitable jurisdiction was maintained.

It does not seem to us that the grant of original jurisdiction in all cases in eguity made by the Constitution as amended in the year 1875, was diminished by any other provision of the amendments. The grant by the same section (Section 8, Article VI,) of appellate jurisdiction in matters pertaining to the probate jurisdiction, and to the estates and interests of minors in the County Courts, does not take anything from the original equity jurisdiction. The express subjection of the jurisdiction of the County Court, as defined by the quotation above from section 10 of the same article, to the “ direction and supervision of the appellate and equity jurisdiction ” of the Circuit Court, was not a limitation upon the original equity jurisdiction of the Circuit Court, but a subordination of the powers of the County Court to the original equity jurisdiction of the Circuit Court in addition to that provided by section 8 of the article in question in giving the latter court also “ appellate” jurisdiction. In a word, under the Constitution as .thus amended, the County Court was not given jurisdiction kmcVusim of the Circuit Court in any matter of administration which a general grant of equity jurisdiction to the Circuit Court would have covered in the absence of such grant to the County Court. This is the theory upon which the jurisdiction of the Circuit Court was maintained in Sanderson vs. Sanderson’s Administrators, supra. That the Circuit Court might, under the provision of section 10, referred to above, have been used for partial aid or relief to the County Court, is not inconsistent with the view announced above.

Since the proceedings in equity now before us were had there has been a change in the organic law of this State. The new Constitution, Section 11, Article V, gives to the Circuit Court “exclusive original jurisdiction in all cases in equity, * * * and supervision and appellate jurisdiction of matters arising before Couty Judges pertaining to their probate jurisdiction, or to the estates and interests of minors, and of such other matters as the Legislature may provide.” It vests the County Judges (Section 17, Article V,) with jurisdiction of the settlement of the estates of decedents and minors, to take probate of wills, to grant letters testamentary and of administration and guardianship, and to discharge the duties usually pertaining to courts of probate.” In future proceedings the powers of the Circuit and County Courts will rest upon the present organic law, and our opinion upon the authorities mentioned above, and those cited in them, is that the original ¿quity jurisdiction of the Circuit Court as it existed before, is not impaired by the new constitutional provisions. Teague et al. vs. Corbitt, 57 Ala., 329; Deck vs Gerke, 12 Cal., 433.

Assuming that the case made by the bill is one entitling the complainants to any relief, we are satisfied it is one for equitable relief.

III. In considering the merits of the case presented by the bill against Deans as to lot 8, it is to be observed that the demurrer admits that the lot was neither sold nor offered for sale by the administratrix under the order of sale"of September, A. D. 1856, and hence it would be entirely improper to discuss, in connection with this lot, the question of the jurisdiction or power of the Probate Court to make the order. If there was no sale of the lot under the order, the conveyance of it by Sanderson, as administrator de bonis non was without authority of law, and the title of the Trust Company would depend upon its purchase and deed of conveyance from Sanderson and possession thereunder. The effect of such purchase and conveyance and possession thereunder cannot, however, be considered upon a record like this, asserting, without denial or explanation, that the company, recognizing the invalidity of its title, had delivered the lot to Deans, as administrator, and that he holds it as assets of the estate of Foreman.

In view of the admission of the demurrer that no sale was made of this lot by the administratrix under the order of 1856, no benefit can be claimed of the provisions of the “Act to quiet titles to real estate,” approved March 11th, 1879. (Chapter 3, 131). If there was no sale made there are no “ purchasers,” or “ assigns ” of purchasers to invoke the five-year limitation or other provision of this statute.

The admissions referred to in the two preceding paragraphs are also inconsistent with a contention upon the part of a Trust Company of having acquired title by adverse possession for seven years under claim of its title from Sanderson, at least so long as the record remains in its present condition.

IV. The next feature of the case is the sale of the above lot 8, made June 6th, A. D. 1881, by Driggs, the Commissioner named in the order of sale entered by the County Court of Duval county May 6th of the same year, on a petition filed by Deans, administrator do bonis non, on the 23d day of the preceding month.

The petition alleges that there' “ is no personal property oí the intestate not administered upon,” and that the- lawful debts and demands now existing against said estate amount to the sum of $22,265. The debts are stated in an, annexed schedule as follows :

Amount due Augustus E. Bass and Job Bass, sole heirs of Elijah Bass, deceased, as per probated account, approved and filed in the probate records of this county of Duval, State of Florida, on June 16th, 1856, and to which reference is hereby made for date and evidence, of said account and amount due...... $28,620.00

Less amount received by Augustus E. Bass and Job Bass from said estate.................. 6,555.00

Balance due........................... $22,065.00

Estimated expenses of sale, probate fees and commissions................................ 600.00

$22,665.00

The petition prays for the sale of a lot of land situate in the City of Jacksonville, county of Duval aud State of Florida, known as lot 8, in block 31, in the plan or plot of said city, and located upon and contiguous to the southwest corner of Forsyth and Pine streets, at their intersection in said city, valued, with and including lot 7, so-called upon said plan or plot in said block and adjoining said lot 8, in the appraisement of property of said estate filed among the probate records of said county on June 20th, 1856, to -which reference is made, at (with improvements) $3,500.

The order recites the fact of the filing of the petition, and that it appears by the petition and annexed schedule that there are debts against the estate, and “ no means of paying the same-or any part thereof without recourse to the real estate, the personal property of the said estate having been exhausted.” It orders a sale of all the estate, right, title and interest of the estate of Jacob Foreman, in and to lot 8, appoints John S. Driggs a commissioner to sell, directs him to make written report of the sale, and to make no conveyance until the sale shall have been confirmed by the County Court.

At the sale by Driggs on June 6th, 1881, one Lockwood, the agent of the Freedman’s Savings and Trust Company, bid off the lot at the price of $13,000, and the sale was reported to the court by the commissioner as having been made to “Augustus E. Bass and the heirs and representatives of Job Bass, deceased.” The County Court had neither confirmed the sfile nor taken any action thereon when the bill was filed.

It is contended that under the act of February 16, 1870, Chap. 1732, Pamphlet Laws, Section 40, p. 86, McClellan’s Digest, an allegation of the solvency of Foreman’s estate was essential to the jurisdiction of the County Court to order the sale of the real estate. The fourth section of this act provides that when the estate is solvent, and the debts and charges due and owing by an interstate estate, or by a testate estate in the absence of certain provisions from the will, “ shall exceed the value of the personal estate, and the persanal estate shall have been exhausted, or is insufficient to pay the debts and charges,” a sale of the real estate may be had. Chapter 3016, approved February 27th, 1877; Section 12, p. 584, McClellan’s Digest, provides inter alia that “lands, tenements and hereditaments belonging to an insolvent estate, after the suggestion of insolvency, shall be sold under the same proceeding now required to sell lands belonging to an estate to pay debts/’

The same objection to these proceedings was made by the appellee’s counsel in Deans, administrator de bonis non, appellant. vs. Wilcoxon et al., appellees, 18 Fla., 531, and was held by this court not to be good. The ruling there is that as no such allegation is expressly required by the statute, and the jurisdiction ot the County Court extends to sales of land of both solvent and insolvent estates, it is sufficient .if it appear that there is an estate, and the facts necessary to give jurisdiction in the case of either a solvent or an insolvent estate are set up in the petition. We see no error in this conclusion — even assuming the question to be res integra. The allegations required by section 4 of the act of 1870, sivpra, will give jurisdiction whether the estate be solvent or insolvent; and if insolvent, whether it has not or has been formally suggested to be insolvent. An inquiry .as to the solvency is not jurisdictional, and the fact does not have to be averred in the petitition.

The statement of the petition is, that “ there is no per•sonal property of the intestate not administered upon,” and the order adjudicates that the personal estate had been “exhausted. ” This being so, the County Court had, as against a collateral attack, jurisdiction to act in the matter of the sale of the real estate. Hays vs. McNealy, 16 Fla., 409; Emerson vs. Ross, 17 Fla., 122; Sloan vs. Sloan, 25 Fla.; S. C., 5 So. Reporter, 603; Deans vs. Wilcoxon, supra.

(b). Being satisfied that the County Court had jurisdiction to act in the matter, of the order of sale May 6th, 1881, the inquiry now is whether or not the other grounds of complaint against the order are of such a character as, under the principles of law controlling in such cases, will authorize an arrest, through the instrumentality of a bill in equity, of further proceedings by the County Court under its order.

One complaint of the bill is as to the indebtedness or claim for the payment of which the order of sale was made.

The petition of Deans avers that the lawful debts and demands existing against the estate amount to the sum of $22,665.00, “ as appears by the schedule annexed,” made part of the petition. The statement of debts in this schedule is given in the second paragraph of this subdivision of this opinion.

It is evident from the bill that the above Bass claim is the same as that described in the schedule to the petition of Mrs. Foreman administratrix as follows : “ 1838, Dec, 20. Account filed and proved due estate of Elijah Bass, deceased, $28,620.”

The bill in treating of the order of sale obtained by Mrs. Foreman, in September or October, 1856, says that the claims or demands for the payment of which the sale was prayed, were not debts or demands against said estate,, and were not such claims or demands as upon a petition sotting up the jurisdictional facts could be made a lawfull predicate upon which to order a sale of real estate, nor were they, or either of them, subsisting claims or demands against the estate of Foreman; and it is also alleged in connection with the order of sale procured by Deans, May 6th, 1881, that at the time oí Sanderson’s appointment as administrator, which was August 6th, 1860, there was no valid subsisting debt or claim of any kind against the estate of Foreman, for which the assets of his estate in the hands of Deans, as administrator do bonis non,. could or ought in law or equity to be liable, nor was Deans liable or compellable to pay the Bass claim, or any other in his capacity as such administrator. There also occurs in connection with an allegation that the County Court had no jurisdiction in the Deans proceeding to determine whether or not the Bass claim was established as a predicate for the order, if said debt or claim ever existed, a denial of its existence in the usual form of such denials, i. e., “ which is denied.”

Of course the allegation that the administratrix paid off and discharged, through her attorney, and without suit, abatement or delay, all the lawful claims and demands of the estate, does not include the Bass claim as one so paid.

What the evidence or proof of the validity of this claim on file in the Probate Court, and which the Probate Judge in 1856, and the County Judge in 1881, had before them, and by which they were satisfied of its validity is, we are not informed. It is certain that it was such as to satisfy them of its validity in law as a claim against the intestate’s estate, 'and that it was of such a character ’ as to authorize a sale forjits payment. This evidence, whatever it may be, is by the terms of Deans’petition and schedule, referred to as proof of the claim, and it is to be conclusively presumed that the County Judge considered it in the deliberations which resulted in his order of sale. Any other presumption would impute dereliction of duty. The sufficiency of the evidence is not jurisdictional. Robinson vs. Epping, 24 Fla., 237; S. C., 4 So. Reporter, 812; Sloan vs. Sloan, 25 Fla.; S. C., 5 So. Reporter, 603; Price vs. Winter, 15 Fla., 106, 107; Comstock vs. Crawford, 3 Wall., 396; Florintin vs. Barber, 2 Wall., 216; Grignon’s Lessee vs. Astor, 2 How., 319; Morrow vs. Weed, 4 Clarke, (Iowa) 77; Carter vs. Waugh and wife, 42 Ala., 452; Stow vs. Kimball, 28 Ill., 93; Morse vs. Neil, 39 Ill., 256; Hobson vs. Ewan, 62 Ill., 146; McClellan’s Digest, Section 40, p. 86.

Assuming, as we well may, that when an order of sale has been made a County Court, acting upon a petition which gave it jurisdiction to act or decide in the premises, the heirs of the intestate can, by a proceeding in a court of equity, arrest the execution of such order on the ground that the indebtedness upon which the Court has acted is not a valid debt of the estate, the burden is upon them to show by their bill of complaint or other proper pleading that the debt is not valid. The order of the County Court is, under the circumstances indicated, at least prima facie legal as to the indebtedness, and to invoke the aid of chancery, the heir must state in his bill facts in relation to the alleged indebtedness which, if true, will overthrow the prima fade presumption created by the order. Generalaverments of conclusions of law will not do. To say that the claims or demands, for the payment of which a sale-was prayed, were not debts of the estate, or were not such claims or demands as could be made the lawful predicate of an order, or were not subsisting claims or demands-against the estate, or that there was no valid subsisting debt or claim against the estate, for which the assets in the hands of the administrator de bonis non, could or ought in law or equity to be liable, or that such administrator was not liable or compellable in law or equity to pay the alleged claim, is but to aver a conclusion of law, the contrary of which the order itself affirms.

If the original valid existence of the claim is admitted, and a satisfaction of it by payment, or otherwise, is relied, upon, this new matter, whatever it may be, should be specifically averred. If, on the other hand, the claim never-had any existence, but is the creature of fraud upon the part of the owner of it, to which fraud the administrator is either a party or an innocent victim, or is otherwise invalid, such fraud or invalidity whatever it may be, should be explicitly charged. The alleged debt must in all cases-either have been originally valid, or be a creature of fraud or otherwise of no validity. If courts of equity could be-invoked to inquire into the validity or propriety of the action of the County Courts or any other principle of pleading than this, or upon a mere assertion of their invalidity or non-exi'stence as subsisting claims, not only would there be no limit to the applications to them for such inquiries, but they would enter upon their investigations, not as in ordinary cases, to inquire into the facts of a particular charge invalidating it, and apply the law to the same, but to first explore and find out what specific charge could be made or formulated.

The allegations set out above are clearly demurrable as no facts to which the law can be applied, on a demurrer, as a test of the validity of the indebtedness or orders of sale.

(c.) The doctrine of laches and staleness of claim is invoked by both complainants and defendants in this cause, and in addition, the complainants contend that the Bass claim had become barred by the statute of limitations prior to the death of the intestate, Jacob Foreman, or when the first order of sale was made; whereas the defendants assert that the claim was not affected by any bar of the statute, for the reason that the claimants, the Bass heirs, were residents of the State of Louisiana, where the cause of action accrued.

The statute of limitations of November 10th, 1828, originally made an exception in favor of persons who were, at the time certain causes of action accrued, either within the age of twenty-one years, feme covert, imprisoned, “ beyond the seas, or out of the country,” but in 1846 the Legislature enacted that the saving clause in the statute mentioned, and all other acts of limitation, in favor of persons “ beyond the seas or out of the country ” until such persons shall have returned, shall not extend to persons who were not at the making of the contract or accruing of the cause of action domiciled or resident within the limits of this State. It is not pretended by defendants that the Bass heirs were so domiciled or resident. This amendatory law of 1846,. section 2, page 443, Thompson’s Digest, was in force when Foreman died in March, 1856, as well as when the order of sale of the following September was made, and in fact until the suspension oí the several statutes of limitation, on January 10th, 1861 ; and the above statement of it is a sufficient answer to any contention of defendants based on the previous exception of the statute in favor of “ persons beyond the seas or out of the country.”

Addressing ourselves to the question of the staleness of the Bass claim as urged by the appellees, or complainants, we find from the amended bill and exhibits that in the exhibit to the petition filed by the administratrix in June, 1856, this claim is described as account of December 20th, 1838, for §28,620, filed and proved as due the estate of Elijah Bass. This is clearly the meaning of the terms used, as they appear in the preceding pages of this opinion, and there is no doubt as to the identity of the claim described in each sale proceeding, it would seem from the description of it that it originated December 20th, 1838, or about seventeen years and three months before the death of Foreman, and seventeen years and six months before the filing of the petition by the administratrix.

The contention of complainants is, that the presumption-of law is that this claim had been satisfied. He invokes the twelfth section of the above act of November 10th, 1828, section 1, page 444, Thompson’s Digest; section 71, page 96, McClellan’s Digest, by which it was provided that if any suit be brought against any executor or administrator or other person having charge of the estate of a testator or an intestate for the recovery of a debt due upon an open account, it shall be the duty of the court before whom such suit shall be brought to cause to be expunged from such account every item thereof which shall appear to have been due five years before the death of the testator or intestate. It had a saving clause of three years after removal of the disability, in favor of all plaintiffs non compos mentis, feme covert, infants, or imprisoned; that as to persons “ out of the State,” having been repealed by the above act of 1846.

This provision was mandatory, and, when applicable, devolved upon the court the duty which it sets forth, “ without reference to the state of the pleadings.” Patterson vs. Cobb, 4 Fla., 481, 487, 488.

If it be that this section applied to a case like the one before us where the administratrix was seeking the action of the court in a manner that implied her satisfaction with the validity of the claim, we think it must be assumed, in the absence of affirmative showing to the contrary, that the Judge of Probate made the inquiry in 1856, and found that the claim was either of such a character that the statutory bar did not apply to it, or that it had been taken out of the bar by a subsequent promise of the testator within the five years next preceding the death of Foreman, or that the parties owning it were infants or under some other one of the disabilities in favor of which the statute makes a saving.

Whether we consider the case in connection with the statute referred to, or independently of it, and as governed by the equitable principle of the bar which the lapse of time makes to the enforcement of claims, the conclusion we reach upon the pleadings before us as to this Bass claim having been barred before the preseutaion of it to the administratrix is adverse to the complainants. They are in the equitable proceeding now before us the actors, and their position is this: In 1882, about twenty-six years after the death of Foreman, and the same period after the presentation of the claim to the administratrix and its recognition by her and by the Probate Court as a. valid claim against the estate of Foreman, and about twenty-five years after the death of Job Bass, and twenty-two years after the death of the testatrix, and about eleven years after Sander-son, who was the attorney of the administratrix during her administration, and who succeeded her as administrator de lonis non in 1860, had passed away, they are asking that the claim so recognized, and upon which a payment of over six thousand dollars had been made, shall be adjudged not to have had any legal existence againsts the estate at the time it was either so acknowledged or partly paid. Of the parties who appear to have known anything of the merits of the claim, all but one are shown to be dead.

If we view the assault upon this claim in its application to the proceeding instituted by Deans for the sale of lot 8, our conclusions'are also adverse to a presumption of its payment, on the score of the lapse of time since the recognition of it by the administratrix. It is the adjudicated law of this State that when a claim' is dnly presented or exhibited to an executor or administrator, under the statute of non-claim and not denied by him as being a good claim against the estate of his testator or intestate, the general statute of limitation ceases to run against it. Sanderson’s Administrators vs. Sanderson, 17 Fla., 820, 850-2; Bush vs. Adams, 22 Fla., 177; McDonald vs. Bogue, 16 Fla., 363. The validity of this claim as of the day of its presentation to the administratrix, duly proved as it seems to have been, not having been effectually assailed, we do not see that subsequent events have been such as to render it stale and the subject of adjudication that it -is barred as against the lot last named. Any presumption that might arise upon the face of the bill against the claim from the delay from October, 1856, to the death of the administratrix in 1860, and from then to the'year 1870, in consummating the sale of lot seven, is overcome by the partial payment made on it, and the subsequent, at least defacto, consummation of the sale of lot seven ; and moreover, we are to remember that during four years of this time subsequent to 1860, the country was in a state of war, and for a long period subsequent to the cessation of actual hostilities, business was either actually suspended or greatly paralyzed. The delay in carrying out the sale of lot seven is unexplained by the pleadings, and in the absence of explanation, is imputable at least as much to the administratrix and her successors, as to the creditor.

The only information we have of the condition of the estate at the death of Foreman is that given by the schedule of debts and demands and assets forming a part of the petition of the administratrix, and from this it is evident that the estate was insolvent, allowing the widow one-half of the personal property in fee simple, except slaves, and in those to a life estate, and to one-third of the reality for her life. Even if we should assume that all the estate set forth in the schedule mentioned had been collected by the administratrix and administrator cle bonis non and applied to the widow’s dower and to the indebtedness, there would still be a balance of this claim unpaid; but it is not contended that this has been done. The allegations of the bill are such as to exclude the idea that any other payment than that of $6,555 has in fact been made on the claim out of the assets of the estate.

Upon the face of the bill.it appears that in 1881 Deans, as administrator cle bonis non, had come into possession of property of the estate, lot 8, which has in law never been administered upon. This is ten years after the death of Sanderson, his predecessor, who, a year before his death, had recognized the indebtedness as existing. The evidence of the claim remains on file in the Probate Court, where it has been all the time. The dealing of Sanderson with this property in 1870 was, unless we voluntarily impute corrupt motives to the owners of the claim, such as to lead them to believe that Sanderson was then lawfully recognizing it as a valid indebtedness of Foreman’s estate. From the time Sanderson, as administrator de bonis non, made the deed in 1870, till the institution of the action of ejectment by the heirs of Foreman to recover lot 8, this being, in the language of the bill, “ before Deans filed the above peti - tion,” it does not appear that there was any necessity for action in this State on the part of the owners of the claim, or if any, that it was known to them.

Complainants invoke also section 72, page 97, McClellan’s Digest, section 13, act of November 10th, 1828, which, omitting the saving clause, is to the effect that no action of debt shall be brought against an executor or administrator upon a judgment obtained against his testator or intestate, nor shall any scire facias be issued against any executor or administrator to revive such judgment after the expiration of five years from the qualification of his executor or administrator, and all such judgments after the expiration of five years upon which no proceeding shall have been .had shall be deemed to have been paid and discharged. This statute, if it be in force, upon which point we say nothing, does not apply to the case before us. We are not dealing with a judgment rendered against Foreman in his life time, and upon which no action had been taken by the judgment creditor for five years next after the qualification of the adminisiratrix. In Sanderson vs. Sanderson, 17 Fla., 850, this court said : “ It has been the practice in this State since its organization to require of a creditor nothing more than the presentation or exhibition of his claim to the administrator. This stopped the operation of the statute of limitations and of non-claim. It has never been held in this State that the creditor after presentation must reduce his debt to a judgment. * * The accumulation of unnecessary costs and the sacrifice of the interests of heirs would be the natural result of such a policy.” 40 Miss., 716; 29 Wis., 64. Independent of the effect which the presentation of this claim to the administratrix had upon the statute of limitations, the running of the statutory bar would have been stopped by the act of January 15th, 1861, suspending the statute of limitations “ in relation to civil actions.” Section 3, chapter 1271, Laws of Florida, 1860. Hart vs. Bostwick, 14 Fla., 162; McDonald vs. Bogue, supra. This suspension continued for some time after Sanderson’s appointment as administrator de bonis non. The enactment of the limitation act of February 27th, 1872, to be found in McClellan’s Digest, did not do away with the effect of the presentation to the administratrix. The conduct of the administratrix and of Sanderson as to the claim are, under the allegations of the bill, irreconcilable with the idea of its having become stale or barred, or with á presumption of its actual payment while they were such administrators.

In McArthur vs. Carrie’s Administrator, 32 Ala., 75, cited by counsel for appellees, an administrator in Mississippi had in 1828, made a sale of a slave. Under the statute law of the latter State, administrator’s sales were void if not public. Twenty-three years after an administrator de bonis non began an action to recover the slave and her increase. The testimony as to whether the sale was public or private was irreconcilably conflicting. The records of the Probate Court had been burnt, and the various persons who had held office in that court differed essentially as to what those records disclosed. From the time of the sale until March, 1853, when a few months before the commencement of the action, the slaves were removed to Alabama, they remained all the time in the neighborhood in which, they were sold, and in the independent and undisputed possession of the purchaser, McArthur, and his son, the defendant. It was held by the Supreme Court of Alabama that proof of uninterrupted adverse possession of personal property for twenty years raises a prima facie presumption of title and ownership which can only be overturned by proof showing that such possession is not inconsistent with the plaintiff’s right or explaining and excusing the long acquiescence on some other ground than original defect of title in the possessor.

The Alabama court in this case uses approvingly the expressions in other opinions that “ the lapse of twenty years is sufficient to the presumption of almost anything necessary to quiet the title to property ;” and “ if a final judgment had been rendered, according to the principle of the common law, it would be presumed to have been paid after the expiration of twenty years, and if the parties allow this period to lapse without taking any steps to compel a settlement, we think the presumption of payment arises, and the executor or administrator should be exempted from the necessity of hunting up evidence to prove accounts and vouchers which ordinarily enter into such settlement.” Rhodes vs. Turner, 21 Ala., 210; Sims vs. Aughtbery, 4 Strob. Eq., 103; Barnett vs. Torrence, 23 Ala., 463; Gantt’s Administrator vs. Phillips, Ibid, 275.

Bird’s Administrator vs. Inslee’s Executors, 8 C. E. Green, 363, which is also relied upon by complainants, was a case in which Bird had obtained a judgment against Drake, and levied execution on a farm which Drake had, prior to the judgment, conveyed to Inslee. Subsequently to the levy Bird filed a bill in October, 1847, to set aside the deed as being fraudulent against his judgment, and over twenty years afterwards Bird’s administrator sought to revive the suit against Inslee’s executors. By the statute of limitations twenty years barred either a scire facias or an action on the judgment, and it was held on demurrer to the bill that payment of the judgment was to be presumed from the lapse of twenty years.

The distinction between the cases relied on and the one before us is, that in the latter there has been no continuous period of twenty years within which the Bass claim has not been specifically recognized by the representatives of the estate of Foreman as valid and subsisting.

There is nothing in the case of Teague et al. vs. Corbett, Administrator, 57 Ala., 529, decided in 1877, which conflicts with our conclusions. The facts there were in short that the administrator has orally pleaded the statute of limitations and judgment had gone against him in 1870, on a promissory note owned by his partner, and signed by his intestate and another, and had settled the judgment, and he claimed reimbursement out of the proceeds of real estate of his intestate. The heirs who resisted the claim were permitted to show that his defence of the plea of the statute of limitations in the action of the note, which defence he conducted in person, was negligent, both in not requiring proper proof by the plaintiff, and in not using accessible evidence to prove that it was barred as to the intestate; and they were allowed to show that the note was in fact barred as to his intestate, and he was denied the reimbursement. A judgment in favor of a creditor, and against an administrator, is held to be prima facie evidence against other creditors and distributees of the validity of the demands on which it is founded and of his liability to pay it; but it is not conclusive evidence, and other creditors and the distributees may, when he claims a credit for payments made on it, show the invalidity of the demand, and that the judgment was the result of his laches in making the defense. And though to this general principle the exception prevails there of not requiring an administrator to plead the statute, and a failure to interpose such a plea does not deprive him of the right to reimbursement out of the personal assets, yet it was decided, that when he does plead it he must exercise the same degree of dilligence that would be required in making any other defence, and especially when he stands in intimate and confidential relations to the creditor. It was also held that there is no privity between the administrator and heir or devisee as to the real assets, and they cannot be bound by any admission or acknowledgment of the administrator, and further that if an administrator pays a judgment, and claims reimbursement from the real assets, the heir may protect himself by showing that the debt upon which it was recovered was barred by the statute of limitations.

(D.) It is also urged in the bill that the County Court had no jurisdiction to determine, in the proceedings instituted by Deans, whether or not the alleged Bass claim “ was established as a predicate ” for the order granted therein, or to determine whether such claim was a valid subsisting debt when administration was originally granted on Foreman's estate.

The reasons given in support of this contention are two : 1st, that inasmuch as Job Bass and Augustus E. Bass were sureties on the administration bond of Mrs. Elizabeth Foreman, and were alleged to be the beneficial owners of the claim, it could not be determined by the County Court whether or not the said Elizabeth and her sureties were indebted to Foreman’s estate, until there was a settlement of Mrs. Foreman’s administration by herself, or by her personal representative, Augustus E. Bass. 2d, that inasmuch as Mrs. Forman succeded under the will of Job Bass, which was probated May 27th, 1857, to the claim, if it was at that time a valid and subsisting debt, as co-owner thereof, the right to receive and the duty to pay were united in the same person and thus was extinguished by operation of law, and her status as a creditor or a debtor of the Foreman estate was made dependent upon, and could be determined only by a final settlement of her administration.

As to the first proposition, the Probate or “ County Court ” could have told from the administrator’s accounts whether or not the administrator was indebted to the estate, and if so, it would have been its duty to refuse to makeasaleof real estate to pay a debt held by the sureties on her bond, if such sale would injure the rights of other creditors, or the estate was solvent and it would consequently injure the heirs.

The fact that Mrs. Foreman was at the same time joint owner of the claim, as well as administratrix of Foreman’s estate, did not of itself extinguish the claim, even to the extent of her interest, nor would such have been the result had she been sole owner of it, Wankford vs. Wankford, 1 Salkeld, 299, 305; Hall vs. Pratt, 5 Ohio, 73; Lowe vs. Peskett, 16 C. B., (81 E. C. L.,) 500. Nothing was decided on this point in the case of Ragland vs. Calhoun, 36 Ala., 606, cited by counsel for appellees. It is true that parties ur’ged there that where a debt and a credit — a right to demand and an obligation to pay — co-exist, even for a moment, in the same person, the debt is extinguished by the presumption of its payment, but “ the ultimate decision of the interesting question here suggested,” was, in the language of the opinion, left “ open to be decided when it arises,” the court “ not intending by anything * * said ” (and it had merely given the argument and authorities) “ to intimate an opinion the one way or the other,” yet stating that on account of a certain decree of the Probate Court, by which the parties referred to were concluded, the principles could be of no avail to those in whose behalf it was urged. The only one of the decisions cited by the Alabama court that we have access to, is that of Enicks vs. Powell, 2 Strob. Eq., 196, and it gives an administrator de bonis non a relation to the administration . in chief that does not obtain in this State unless it be in cases of removals under the statute of 1870, referred to in a subsequent subdivision of this opinion.

(E.) The bill also contains allegations as to the Trust Company and Deans, in relation to the administration of Deans, and his application for the order of sale, the sale itself, and the intention of the Trust Company, which it is necessary to notice. They, as set out in the following three paragraphs, are:

(1.) That the Trust Company recognizing the invalidity of its title to lot 8, and desiring to acquire title thereto, procured from the grantors in the deed to Sanderson an assignment of the claim alleged to be due by the estate of Foreman, and upon which the subsequent order of sale obtained by Deans, as administrator de bonis non, was based, and also procured Deans to sue out such letters of administration, and to make application for the sale of the lot to pay said debts; that Deans, when he applied for letters of administration, had no connection with Foreman’s estate or any alleged claim due from it, or any interest in, or connection with the lot of land except as the attorney of the Trust Company, or its Commissioner, which relation of attorney he occupied at the time the letters of administration were granted and still occupies.

(2.) That at the sale of June 6th, 1881, under the order of the County Court, one Lockwood, the agent of the Trust Company, bid it off at the price of $18,000, and the sale was reported to the County Court, by its Commissioner, Driggs,.as having been made to “ Augustus E. Bass, and the heirs and representatives of Job Bass, deceased,” and no further action has been taken by that court.

(3.) That no purchase money was paid on the bid, nor was it intended by those making it or interested therein, "that any payment in cash should be made, or that any payment of the bid should be made other than crediting the amount bid, as cash upon the alleged debt, for the payment •of which the sale was made; it being, according to the statement of the bill, immaterial to the parties making the bid or interested therein whether the bid so reported and -the sale thereon, were confirmed by the court to the Trust Company, by whom the bid was really made through its Agent Lockwood, or to said A. E. Bass, and the heirs and representatives of Job Bass ; the reason of such immateriality or indifference on this point being that by the operation of the warranties in the deed to Sanderson, and that from Sanderson, the deed of the County Court Commissioner executing the sale would enure exclusively to the Trust Company whether the sale was confirmed to such •company or to those whom the commissioner had reported as purchasing. That the whole purpose underlying the application by Deans for administration, and the proceedings had. by him to effect a sale of the lot will be accomplished, and complainants defrauded by having the amount •of the bid credited on or applied to the parties in whose name it is reported as having been made.

If the Trust Company was the holder of a valid claim against the estate of Foreman, there was nothing improper in its procuring the appointment of an administrator de bonis non to take possession of and administer any unadministered property of the estate — which status the bill gives to this lot 8. That the company “ procured ” Deans to sue out letters and to make application for the order of sale to pay the alleged debt, does not, considering how it is alleged, impute any illegal conduct to the company of Deans, but if, when he was applying for such order, he was the attorney of the company, or its commissioner, as such, for the enforcement of this claim against the estate or to procure its payment out of the lot, or to obtain title to the' lot through the means of a sale based on the claim as a, subsisting indebtedness of the estate, the duties- of such relation, and those of administrator were, to say the least, incompatible with each other, and .if such relation to the-company is neither expressly nor impliedly assented to by them, they ought not to be bound by his action in regard to the sale. “ If,” says this court in Knox et al. vs. Barnett, 19 Fla., 817, 839, “ the administrator here is the attorney of the creditors, he has assumed a position of hostility to the heirs. If he represents the debt it is his duty not to contest it, which it is his duty to the heir to do if there is legal ground for so doing * * *.” That it would be a ground for removal from the administratorship in the proper forum can hardly be doubted. Ibid ; Epping, Bellas & Co. vs. Robinson, 21 Fla., 36.

But what is the real status of complainant as shown be-their bill to this sale. They expressly state that they are willing that the sale made by Driggs should stand, provided the Trust Company or parties in whose name the bid is reported as having been made, pay into this court (i. e., the Circuit Court of Duval county, sitting in chancery) to be distributed to those entitled thereto, the purchase money so bid, and they offer to ratify the sale upon such payment being made of the purchase money, to be disposed of by the order of the court. The prayer of the bill on this point is that the Trust Company, or Knox, its commissioner, pay into the Circuit Court the sum of $13,000,bid for lot 8, tobe disposed of by the court, or failing therein, that the sale be set aside and declared of no effect.

If the sale is voidable because of the invalidity of the indebtedness upon which it is based, it must be avoided altogether and as to all parties in so far as any action of the court is concerned. An invalid proceeding for the sale of real estate to pay debts cannot be declared void or set aside because of the invalidity in the alleged indebtedness, the creditor *being the purchaser, and yet held as against the purchaser’s will to be a valid sale for the purposes of division among the heirs of the estate, particularly in case where actual fraud is not charged. Knox vs. Spratt, 19 Fla., 837. ¥e have held that it is not voidable by reason of illegality in the Bass claim, or in other words, that the bill does not .show the claim to have been invalid. This being so, the conclusion is that the heirs have not by their own showing, suffered any injury on this score from the relation alleged to have been sustained by Deans to the Trust Company. It is also clear from the above proposition and prayer of the "bill, that the complainants are satisfied with the amount for which the property has been sold, and they have not suffered from the sale actually made by the Commissioner. The claims for which the sale was made not having been shown to be illegal, and the sale having been made for an amount satisfactory, it is apparent that the heirs, even if they have any 'interest in the estate, have not been injured by the proceedings up to this point.

The bill does not, in the above paragraphs numbered (2) .-and (3), or elsewhere, inform us that the company, or its commissioner, was not authorized by “ Augustus E. Bass, and the heirs and representatives of Job Bass, ” to bid in their name, although it says that the bid was really made by the company, through its agent, Lockwood. The purchasers, shown by the commissioner’s report, are the Basses. ¥e will not assume that the party actually making the bid was not authorized to do so. If those really making the bid comply with it and take the titles in the names of the Basses, it is a matter of no concern to the heirs or any other third parties, whether the Basses authorized the bid or not.

Of the allegations as to the intentions of those making the bid or interested therein not to make any payment therein other than a credit of the amount thereof on the Bass claim, it is only necessary to say that we do not regard them sufficient of themselves to justify interference on the part of a court of equity. As the order of sale has not “ otherwise directed, ” the sale was in law, and must be assumed to have been in fact made “ for cash; ” section 30, p. 87,. McClellan’s Digest; and of course the commissioner will, if the sale shall be confirmed by the County Court, not deliver any deed to the purchaser except upon the order of the County Court directing it to be done upon the purchasers’ compliance with the terms of the sale. Section 43, pp. 89, 9), McClellan’s Digest. The funds arising from the sale, says the statute, section 43, p. 90, shall be delivered by the commissioner to the administrator upon the order of the court after the administrator has given the “ bond with good security, to be approved by the court, ” required the condition of which bond is, section 40, p. 87, for the faithful application of the money to the payment of the debts and charges. It is not to be assumed that either the County Court or the commissioner will violate the duties imposed by the statute;, nor is that court without power to require obedience to its-lawful orders.

Our conclusion is that the bill fails to make a case against Deans, or any one connected with the sale of lot No. 8, under the order of the County Court.

Y. It is contended in behalf of Sanderson’s administrators that the heirs of Foreman have no right to sue for lot No. 7, but that if the bill shows a right of action in any one, it is in Deans, as administrator de bonis non, because the lot is an unadministered asset of Foreman’s estate. The authorities cited by counsel in support of this position are 2 Williams on Executors, 986, 1002; Cubbidge vs. Boatwright, 1 Russell Chan. Cases, 549; Forniquet vs. Forstall, 34 Miss., 87; Cochran vs. Thompson, 18 Texas, 652; Swink vs. Snodgrass, 17 Ala., 653.

It is said in the first of the citations: “ If, however, an original executor has fradulently aliened an asset for his own use in collusion with his vendee, such asset will be regarded in equity as unadministered, and will pass as such to the administrator de bonis non. ”

In Cubbidge vs. Boatwright, the testatrix, Mrs. Cubbidge, directed by her will that certain property, including a leasehold,should be sold and the proceeds paid to her four children share and share alike. Her administrator cum testamento, Higginson,a son-in-law, possessed himself of the property and assigned the leasehold to H. upon trust to secure an annuity which H. had granted to B., the consideration for the annuity being £250, which B. had advanced to H. confessedly for the private use of the latter, and not for the purposes of the testratrix’s will. The trust deed recited that the lease and leasehold premises had, with the consent of the other legatees, been valued to H. at £570, * and that he had duly paid to them their several shares of that sum, but that there was no proof of this or of any other arrangement authorizing H. to deal with the leasehold as his own property. H. died and his executrix sold the leasehold at auction, B. becoming the purchaser, and the £250 was credited on his bid. Shortly after B. sold to Bayfield, and afterwards the administratix de bonis non of Mrs. Cubbidge filed a bill and had the sales set aside and recovered the leasehold. “ If Higginson,” says the Master of Rolls, “in this character of executor, had sold the property to Boatwright, and Boat-wright had been ignorant of the real nature of the transaction, the sale could not have been set aside. But it is clear that this leasehold, at the time when the grant of the annuity took place, was vested in Higginson only qua administrator, and that the grant of the annuity to Boat-wright, and the assignment in order to secure the annuity, were not acts done by him in his character of administrator, or in the course of the administration, of the assets. Upon Higginson’s death, therefore, no portion of this leasehold interest passed to his executrix; but being still assets unadministered, it passed to the administratix de bonis non of the original testatrix; and she is entitled to recover possession of it for the purpose of due administration. ” In Forniquet vs. Forstall, the administrator had land bid off at a probate sale in the name of his brother-in-law nominally, but in truth for himself. Subsequently he was removed as administrator, and the administrator de bonis non filed a bill to set aside the sale and recover the land. In Cochran vs. Thompson, an administrator be bonis non, Cochran offered real property of the intestate, Smith, for sale in pursuance of an order of the Probate Court which he had obtained, and then proceeded to sell, having previously entered into a fraudulent contract with Shannon, by the terms of which Shannon was to buy in the land for cash, and re-convey two-thirds of it to Cochran, which he did. After-wards Cochran died, and Thompson was appointed administrator de bonis non of Smith, and as such recovered the land of Cochran’s administrators. Swink vs. Snodgrass, was an action of detinue, and the sale was held to be a pretense and a fraud, and the doctrine of the case is that if an administrator fraudulently dispose of assets to one cognizant of the fact that he is acting in violation of his trust, the sale is void, and an administrator de bonis non may recover them.

Upon these authorities it is apparent that collusion beweon the administrator and ostensible purchaser is an essential element to deprive the sale of its effect as an administration and leave the asset unadministered and subject to the power of the administrator de bonis non. We do not think that lot No. 7 is shown by the pleadings to have been dealt with by Sanderson simply as his individual property, and not as administrator, or fraudulently. His conveyance of it was pursuant to a probate sale, made by a former administrator, and there is not enough to show fraudulent collusion between the vendees and himself as to it. The fact that he was an administrator de bonis non did not preclude his consummating the sale made by his predecessor in the administration, under the legislation then in force as to such sales. Freeman’s Void Judicial Sales sec. 46; Gredley vs. Phillips, 5 Kan., 349; Baker vs. Bradsby, 23 Ill., 632. The allegations of his desire to possess himself of the property, and that his deed of conveyance back to him were one transaction, are not sufficient to charge that they did not take it under the probate sale, or impute to them either complicity in or knowledge of any improper purpose on his part. This being so, we do not think it can be said that lot No. 7 has not been administered upon, in the sense that will permit the administrator de bonis non to recover it. Where fraud is relied upon, it should be clearly shown by the averments of the pleading. The President vs. Goff, 14 S., 6 R., 181, 184; Howard vs. P. &. A. R. R. Co., 24 Fla., 560; S. C. 5 So. Reporter 356; Wortman vs. Skinner, 12 N. J. Eq., 358; Bertine vs. Varian, 1 Edward’s Chan., 343; Johnson vs. Johnson, 5 Ala., 90.

There is to lot No. 7 a fatal defect in the parties defendant to this bill. Upon the face of the bill the title to the lot was in Sanderson individually at the time of his death, and then it descended to his heirs, and they are entitled to their day in court to defend it against those seeking to set aside the conveyance by which he acquired title. Sloan vs. Sloan, 21 Fla., 589; Whitlock vs. Willard, 18 Fla., 156; Alston vs. Rowles, 13 Fla., 110; Betton vs. Williams, 4 Fla., 11. Conveyances of the character of these are not void, but, under certain circumstances, are voidable. Price vs. Winter, 15 Fla., 109; Jennison vs. Hapgood, 7 Pick., 1. The decision in Sanchez vs. Hart, 17 Fla., 507; Wade vs. Doyle, 23 Fla., 90; Merritt vs. Daffin, 24 Fla., ; S. C. 4 So. Reporter, 806, do not dispense with the heirs as necessary parties in eases of the kind before us, and are not inconsistent with those relied upon and previously cited. In Sanchez vs. Hart, it is held that an administrator has the right of entry into the possession of real estate of his intestate and can maintain ejectment; that his right to recover follows his right to rents and profits, and because lands are assets in his hands with a power to collect the same, and the basis of his action is the title of his intestate. In Wade vs. Doyle, the court held that where there is an administrator on the estate oí a decedent, and the estate unsettled, the heirs of the decedent cannot maintain ejectment to recover possession of his real estate, but the administrator is the proper party. He, and not the heirs, is entitled to the possession and rents and profits of the real estate until he has administered upon it. Merritt vs. Daffin decides that an administrator holding the real estate of his intestate as assets is under the law of this State the only necessary party to a suit to foreclose a mortgage made by the intestate and the heir, though not a party, is concluded by a decree of foreclosure and a sale thereon. In each of these three cases it is apparent that the land is for the purposes of the decision conceded to be assets of the intestate, and the sole question is the powers which our statutes have clothed an administrator with as to real estate considered as assets. In the case before us, the complainants are not seeking to affect real estate which is conceded to be assets of Foreman’s estate, or to reach it as assets of Sander-son’s estate, but to have it declared assets or property of Foreman’s estate in the hands of Sanderson’s administrators. Neither the statutes nor the decisions justify us in extending the doctrine dispensing with the heirs, or extending the powers of an administrator over the title thus far ; in fact, the decisions first cited in this paragraph forbid it. In Sloan vs. Sloan, the-devisees of Hall were subsequently and properly made parties. Even in a case of doubt, it is proper to have before the court those in whom the statute places the title. The position of the administrators with reference to complainants, and Sanderson’s heirs as claimants of this lot seven, make it essential that the heirs, as well as the complainants, should be before the court to protect their respective interests.

YI. At this point it is proper to notice the averments of the bill as to the “funds in New York,” which Sanderson is charged with having possessed himself of. It is said in one place that Sanderson possessed himself of them, and the amount of them is averred, upon information and belief, to have been several thousand dollars. The only other averment concerning these funds is that which charges that Sanderson’s administrators have made no settlement of his administration of Foreman’s estate, nor any payment or distribution, either partial or final, to those interested therein, on account thereof, but his administration is wholly unsettled.

Sanderson’s administrators contend that Deans, as the successor to Sanderson in the administration, is alone entitled to recover these funds. Unless the funds continue in the same form they were in when Foreman died an administrator de ionis non connot recover them. Gregory vs. Harrison, supra, and other authorities infra. While it is true that the bill does not show that these funds do thus remain in specie, it is very clear .that it does not show that Sander-son has applied them, or that he misapplied them, or that they ever came to the hands of his administrators. The fact that they or Sanderson did not pay them to the complainants, or those they claim under, which the expression “payment or distribution to those interested therein” clearly means, does not, under the case made by the bill charge either a devastavit against Sanderson,, or show a right of action in any distributees of Foreman, or the administrator of any distributee, for nowhere in the bill does it appear, when we consider the insufficiency of the allegations assailing the validity of the Bass claim, that the estate is solvent. Stephens vs. Frost, 2 Y. & C., 297.

In connection with these “funds in New York ” or any other claim against Sanderson arising out’ of any personal property of the estate of Foreman which he may have misappropriated, it is proper for ns to remark here that an administrator or the executor, if there be such of any distributee of Foreman inheriting from him, and who has since died, is the proper and only person to sue. The husband and children of the sisters of Foreman are improperly complainants to this bill and cannot maintain the suit as to any cause of action growing out of personalty. McHardy vs. McHardy, 7 Fla, 301, 308; Alston vs. Rowles, 13 Fla., 110; Teague vs. Corbett, supra; Barbour on Parties, 398, 399; Closen vs. Lawrence, 3d Ed. Chan. Reports, 48; Jenkins vs. Freyer, 4 Paige, 46.

YII. The question of multifariousness is now to beconsidered. The bill does not make a proper case for equitable relief against any of the defendants, and the orders overruling the demurrers must by set aside and all subsequent oi’ders will necessarily fall with them, yet as it may be amended and new ¡parties made, it is proper we should express ourselves on the subject of multifariousness.

It is true as a matter of law, that Sanderson, as administrator de bonis non, is not responsible for anything administered by Mrs. Foreman, and likewise Deans is not liable for whatever may have been administered by Sanderson. Deans has no right of action against Sanderson’s administrators for any alleged devastavit of Sanderson ; for though the statute of February 19th, 1870, (chapter 1733,) Sections 80-90, p. 98 et seep McClellan’s Digest, gives powers and rights of action not existing at the’common law, to administrators de bonis non against executors or administrators who may have been removed by the court for cause, these provisions do not extend to the case of a delinquent deceased executor or administrator who has not been thus removed. The duty of an administrator de bonis non is to administer upon whatever of the estate of the intestate remains in specie and has not been administered upon by his predecessors. Gregory vs. Harrison, 4 Fla., 56; Beall, vs. New Mexico, 16 Wall., 535; American Board of Commissioners, 27 Conn., 343; 1 Williams on Executors, 604, note b; Rivers vs. Patty, 43 Miss., 338; Wankford vs. Wankford, 1 Salk., 306; Dement vs. Heth, 45 Miss., 388; Catherwood vs. Chaband, 1 Barn & Cress., 150; Carrick vs. Carrick, 8 C. E. Green, 364; Bell vs. Speight, 11 Humph., 541.

Deans is not, nor are his sureties, interested in the case presented by the bill against the administrators of Sander-son.

In view of the allegations of the bill the Elijah Bass Es- ' state claim is the only one asserted against Foreman’s estate; and if it be a fact that this claim is not a subsisting debt, there is nothing in the way of the complainants enjoying their right to whatever assets or property there may be of Foreman, the only property of which the bill gives us notice being lots Nos. 7 and 8, of block 31, in Jacksonville, and the alleged liability of Sanderson’s administrators, growing out of his administration de bonis non. On the other hand if this is a valid indebtedness, whatever estate there may be of Foreman is applicable to its payment before any of the complainants can receive anything as heirs or distributees. Upon the case as made by the bill considered thus far, we have before us as complainants, the heirs and distributees, an administrator de bonis non, and the only alleged creditor of the estate. There is no doubt but that relief to which complainants may be entitled to against Deans and the Trust Company andits commissioner could be obtainedin aseparate suit,and yet a suit against Sanderson’s administrators without the Trust Company, as the owner of the Bass claim, as a party, or without some adjudication upon the validity of this claim, would not be effectual to settle the complainants’ rights to Foreman’s estate as against this claim. Again, relief in which Sanderson’s administrators are concerned, is asked as to lot 8 by the prayer to set aside the conveyance of it by their intestate as administrator de bonis non.

As a creditor of Foreman, the Trust Company has an interest in his estate. If it be that the sale of lot 7 to pay this claim, and the purchase of the lot by the former owners of the claim, and the conveyance to them, and the subsequent re-conveyance by them to Sanderson with covenants of warranty will preclude an assertion as against such lot of the balance of the claim now held by the Trust Company, still, upon the face of the bill and the demurrer under consideration there is nothing to cut off the claim, if it is valid, from a satisfaction out of lot Bo. 8, and whatever may be found to be due by Sanderson’s administrators. Lot No. 8 cannot be regarded in the light of this record as having been sold or offered for sale by the administratrix at the sale of October, 1856 ; and not only is this true, but the demurrer admits that the Trust Company, notwithstanding the conveyance of the lot to it by Sanderson, has surrendered it to Deans, as administrator, and that he was, at the fling of the bill, holding and administering upon it as assets of Foreman’s estate.

The Trust Company then has an interest in the entire •ease made by the bill, and is a necessary party to it. Though Deans, as administrator do bonis non, has not any interest in the liability of Sanderson’s administrators, yet we do not think that this would render a good bill multifarious as to him and his sureties.

It is not necessary to overcome the objection of multifariousness that all the parties should have an interest in all the matters contained in the suit; the objection will be •defeated if it appears that each party has an interest in some matters in the suit, and they are connected with the others. Story’s Eq. Pleading, 8th Edition by Redfield, Section 271 a, 279 a; Parr vs. The Attorney-General, 8 C. & F., 409, 433; Attorney-General vs. Mayor, &c., of Poole, 4 Myl. & Cr., 17; Worthy et al. vs. Johnson et al., 8 Ga. 236; Warthen vs. Brantley and Daniel, 5 Ga., 571; Wells vs. Strange, Ibid, 22; Campbell vs. Mackey, 1 Myl. & Cr., 603; Attorney-General vs. Cradock, 3 Ib., 85; Lewis vs. Edmund, 6 Simon, 251. The inquiry is not whether each defendant is •connected with every branch of the case, but whether the bill seeks relief in respect to matters separate and distinct in their natures. If the object of the suit is single, yet different persons have separate interests in distinct questions arising out of that- single object, it necessarily follows that such different persons must be brought before the court in order that the suit may conclude the whole subject. Daniel’s Chancery Pleading and Practice, 336; Story’s Equity Pleading, Sections 534 and 539 a; Hayden vs. Thrasher, 18 Fla., 795. In Attorney-General vs. Cradock, supra, it is observed: The object of the rule against multifariousness is to protect a defendant from unnecessary expense; but it would be a great perversion of that rule if it were to impose upon the plaintiffs, and all the other defendants the expense of two suits instead of one.

It seems to us after a careful consideration of the character of this ease, and of the authorities upon the subject of mnltifariousness, that the matters sought to .be presented may be more advantageously disposed of in one suit than in two. They can all be definitely settled in one suit, and it is not clear that they could be in two suits to each of which both the Trust Company, Deans, as administrator, and Sanderson’s administrators, were not parties. Equity is opposed to a multiplicity of suits. Story’s Equity Pleading, Section 287. The general object or purpose of this suit is the settlement of the estate of the complainants’ ancestor, and it can be effected more conveniently and satisfactorily in one suit than in more.

The orders overruling the demurrers are reversed, and the case will be remanded for proceedings not inconsistent with this opinon.

Case Details

Case Name: Deans v. Wilcoxon

Court Name: Supreme Court of Florida

Date Published: Jun 15, 1889

Citation: 25 Fla. 980

Court Abbreviation: Fla.