70 Fla. 245 | Fla. | 1915
Thiswrit of error is to a judgment for the plaintiffs in an action of ejectment which was brought in the name of W. E. Dunwody, the grantee of lands, to recover the possession from one in adverse possession of the lands. An amended declaration was subsequently filed by leave of the court making the grantors plaintiffs to recover the possession from one in adverse possession at the time of the conveyance, upon the theory that the conveyance though void as to the defendant in adverse possession of the land, was good as between the parties to the conveyances, and that a recovery in the name of the grantors will inure to the benefit of those claiming under such grantors. See Coogler v. Rogers, 23 Fla. 853, 7 South. Rep. 391; McRae v. Preston, 54 Fla. 190, 44 South. Rep. 946; Jones v. Allen, 63 Fla. 204, text 207, 58 South. Rep. 784; Sherlock v. Varn, 64 Fla. 447, 59 South. Rep. 953. The amendment did not make a new action, since the real parties in interest and the essential elements of the controversy remain the same. See Neal v. Spooner, 20 Fla. 38; Hamburg v. Liverpool & L. & G. Ins. Co., 42 Fla.
It appears that John L. Davis of Illinois received title to the land in controversy, and in 1890 conveyed an undivided one-half interest in the land to George L. Eastman; that subsequently Davis died, leaving a will in which he made Charles S. McCoy executor of the will with power to sell and convey the residue of his property bequeathed to the executor in trust, which residue includes the property in controversy; that such will was recorded in DeSoto county, Florida, where the land lies; that McCoy undertook the trust and died in 1899 without completing the trust or appointing- “by will or other writing his successor in said trust estate,” as he was by his testator’s will expressly authorized to do-; that Charles S. MbCoy left his widow Mary E. P. McCoy and a minor daughter, Mary Elizabeth McCoy, as his only heirs at law, and next of kin; that in 1904 by decree of an Illinois court John H. Mackay was appointed trustee for the real estate belonging to' the estate of John L. Davis, deceased, with all the rights, powers, duties and privileges conferred by the last will and testament of John L. Davis, deceased, upon Charles S. McCoy; that pur
It would seem that W. E. Dunwoody is the real party in interest within the provision of the statute (Section 1365 Gen. Stats.) ; that any civil action may be maintained in the name of the real party in interest, and that the nominal plaintiff may be stricken out and the case may proceed in the name of the use plaintiff, and it would also seem that Dunwoody succeeds to the rights of those through whom he claims the land, thus making him a
The case was tried before a referee who found “that the plaintiffs have the right of possession of the property described,” giving the description; and judgment was rendered that the plaintiffs do recover the possession of the lands, describing them. But neither the finding nor the judgment states “the quantity of the estate of the plaintiff” as is mandatorily required by the statute. Sec. 1970 Gen. Stats. of 1906; Sec. 1970 Compiled Laws Ann. 1914; Brown v. Hetherington, 65 Fla. 327, 61 South. Rep. 638; Hoodless v. Jernigan, 46 Fla. 213, 35 South. Rep. 656; Lungren v. Brownlie, 22 Fla. 491; Neal v. Spooner, 20 Fla. 38.
Because of the failure of the finding and judgment to “state the quantity of the estate of the plaintiff” as is mandatorily required by the statute, the judgment is reversed.
Taylor, C. J., and Shackleford, Cockrell and Ellis, JJ., concur.