The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1880-05-18

q
Matilda Wade. q IL, heirs Of James Weeha. de
ceased AppeIlAnta vs.. Michael ]. Doyle, APP
pellee-Appeal ffv'm Orange county.
WsrcUFT, T.:
/. In an action on ejectment pleas under the
statute Of 1milnfien0 simply denying the setzin
or possesaioo of fhe plAinfiA, his gFAnlsr, ances
tor o. predecessor: within eevea yesn oet0e me
commencement Of the action. o. the accruai 81
the right Of acfion, sre bad Upon proof Of legal
title, uny possession not adverse b Ia subofdinA-
ton to the legal titles and adverse possession
should Be set mp By Che pleas
g. The act Of HmitafiOns Of February ~, 1879,
in the past - well - 70 those which would &C
crue In the fnture. The csse Of Spencer w. Nc
Bride IA Fla, 400. approved
g. The saving claase In the statute OF 1872
only extends % the persons 10 whom the tale
Hnt accrae4 and when the statuts has once be
gun 70 run, Il viii continue 10 run without being
impeded by any subsequent disability, such 40
infancy and coVeEtuSs.
(. Although dsmufTes 10 replication opens
the pleadings and refches back 10 the first error
rate and distinct pless on which issue has been
taken.
s. A bad replication is good answer 10 . bad
plea.
6. Upsn demurrer to Implications to several.
pleas, If one of the pleas whicl. ach the merits
final Judgment for shs defendant. The entry Of
. defhnlt Tor want " replication - the plea
afler sustaining demurrer TO the replication is
not correct prsctice-
T. Aher demurrer 10 pleas the court may IN
its discretion permt the pleas to lie Withdrawn.
The order authorizing the withdrawal u entered
on the minutes. but the pleas should not be re-
moved from The files.
8. Under the plea of not guilty in ejectment,
evideuce 10 prove adverse possession is admissible
and . special plea Of the statute Of limitations
should not be allowed. Special demurrers being
aboiished In this State, such plea when filed
with the general issae should be struck out on
motion or suA sponte BY the court, 40 tending
to embarrass the trial
Judgment reversed.
E K. Foster, Baker and Thompson. Counsel
for appellants.
Fleming and Daniel Co0nsel for appellee
James p Sanchez. Administrator, and Margaret
J. Sanchez, Administrative, Of James r. Ban
chez, deceased, Afpeiisnts, W. Hubbard L.
Hart. .Respsndent-Appealf from Putnam eOun-
~.
WEsrcoTT,J.:
1. An administrator in this State has the right
Of entry into and the right Of possession of the
real estate Of his insestate, and can maintain
ejectment His right 10 recover follows his right
10 the rents and profits, and because lands are
assets in his hands with q power to cultivate
l
his intestste. His estate, interest and power
after recovery, is limited BY the incidents and
duties which the Law attaches to him, and with
which his possession is surrounded.
Judgment reversed.
E. G. r. Sanchez, Counsel for appellants; c.
Gillis, Counsel for sppelee.
Thomas l. Whitlock, Appellant, vs.. Theodore
H. Willard, Sheriff and ex-ofacio Administra-
tor of Benjamin F. Whitlock, ct al, Respond
ents-Upon motion to reinstate case and for
leave to amend-
WKsrcoTT j.:
I. The general rule In cases of this character
fspPeals in chancer) IS to enter the appeal in the
name Of all the parties against whom the decree
10 rendered, and one party may take the appeal
in the name of all his codefendants without first
obtaining their consent If the other parties do
not unite in the appeal or tn prosecuting the ap-
peal those prosecutions may have q summons
and severance a. to these who win NOT unite.-
And when there are more defendants than one
all OF their names must be In the appeal, unless
II be case where one may appeal, or II will be
dismissed citation giving notice Of the ap-
peal to the codefendants requiring them 10 Join
In the appeal returnable 10 the term to which The
appeal is returnable, lsaued and served, as the
citation TO the respondent b required to be igsued
and served, will be equivalent 10 Q summons Is
suing from this court after the appeal is dOckeGed
here, and such orders rs 10 severance will be
2. Where the appea k irregular for the want Of
proper parties, they maf he made parties here by
Amendment, and ciiAti0n may be awarded In
this case. no objection being taken to the irregu-
larity by the respondent, the court, in its discre
tiOu, allows The amendment.
Notion granted
Pasco d Palmer, Counsel for Appellant; J. N.
STRIPPING, A. Paterson and j. B. MARSHALL, Coup
eel for Appeilees
John Mcmahon, Appellant, vs. Teresa A. Russell,
Appellee.-Appeal fOm decree Of Jefferson
Circuit Court
RANDALL, G. j.:
l. mortgage in this State is q specific lien
upon property, and IS not. OF ITSELF u conveyance
Of the legal title. The title is divested only BY
forfeiture Of the conditions and . sale under the
decree of the court.
2. The statute gives dover to the widow, " one
third part of the landa of which her husband
died seized and possessed, or had before conveyed
whereof the widow had not relinquished her
right Of DOVER" R add wife executed q mort
gage to secure purchase money, and afterwards
r., without his wife joining, executed smother
mortgage to secure . loan HID. That the wife,
by the first mortgage Ttlinquished her dover
only as to this mortgage and his assigns and the
money thereby secured and was entitled to
dewer a. against The second mortgage, and .
foreclosure Of the second mortgage and sale
thereunder did not divest her Of her dover rriRhis
D. Where husband BAD mOstgnGed land, his
wife not joining or felinquishing her night Of
dover, end this mortgage was f0r0elooe1, and
the land sold and csnveyed under the decree Of
the court, and the husband Afterwards dies; such
mortgage and sale are .. conveyance" BY the
husband Within the contemplation Of the statute
giving dover In lands 's before conveyed whereof
the wife bad not relinquisbed her night Of DOVER"
4 Where the husband and wife had executed
mcrgAge In which abe bad relinQuished her
right o. dover, upon the death Of the husband
the widow cannot maintain snft against the
mortgage or his assigns Who may be in posses
sion n pursuance Of Q sale under second mort
gxge given BY the husband alone, unless sbe
reueens BY paying the fmount due upon the
mortGnge in which she had relinquished her
dover.
g. The purchaser under SECOND mortgage
executed by the husband puly may pay Of and
take an assag1naeek 0f p<iUr m0fteA9e in VII 'ch
the wife had relinquished her dover, and bold
the prior mortgage as apretection against claim
Of dover until s0ch prior sortgage shall be paid
a. the property redeemed aheFeffOm.
Decree reversed.
T. l. Clarke, Counsel tot Appellant; PascO &
Palmer, Ceunssi for Appellee.
-Of The Ohio RepublisAn platform, the Gin
cinnsti 0'emsreial (Rep) says: -The omission
- paw - antfthiFd term sssolntion was rather
msster Of calculating prudence than unmiti-
gsted cowardiee- Il b ihs,opinion af the 6ber-
man mea that they win Rsin IN savaniass hy