The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1885-06-25
"A U-NOrEs TO DECISIONS OF rRR
SUP88NG COURT OF FLORIDA.


Jane FERN, 4. ID. 1885.
Jonathan c. Greeley, Appellant, W. Fannie B.
rerc'val ct al. Appellees-Duval county
McWHoRTER, c. j.:
l. W mere deed of assignment distinctly d.
reefs That the proceeds of the property of the AS
s'gnor shall he applied first to the payment of
certain preferred creditors in full of their debts
In The order in which they are named and The
assignee named in said deed is the first preferred
Creu.Ior, ami accepts the trust and enters upon
the discharge of its Duties he Is not entitled 10
compensation tor the care and management of
the assigned properly if there is not sufficient
amount "f the proceeds thereof to paw said pre-
ferred creditors in full
" hen paper purpOrting TO he an assign
ment by failing debtor for the benefit of his
creult"rs Is admitted in evidence in a cause on
'ria between A. and B, and no objection is
made To 1t 10y either party AS being efF.cIual for
the purposes mentioned therein aud said paper
III another suit between c. and D. on slhSe.
queht Gay OF The same term o the court, In which
the snt between A. and was determined was
neid ny the court Ia be void on its lace such
J"'Snen' OF the court that said paper was OF no
h'gai eHect, Is not n good ground tor granting
new trial to b. in the SUIT between him and A
D In snlt 10y \ preferred creditor IN deed
Oh assignment against the assignee for debt due
INN from The ASST gnor il ia MOI error To refuse to
allow The assignee credit TOR fees of An attorney
proof That ihe amount charged bv said attorney
was fair and reasonable charge tor the services
performed, or That the services of said attorney
were necessary tor the protection of the trust
properly, and not caused hv his own failure to
perform the trusts in The assignment
judgment affirmed
r. Is Archibald, Ia! Appellant; A W. Cock
rell X Spn, tor Appett.s.
Jane Ke'l Appellant, vs. Mary L. West ej ais.
APpelees-Duva county.
RANEY, J
In bill for partition the allegation That
me cotenanls are seized in common of the bands
Is sufficient allegation OF complainant's pos
session
:. The possession nt one tenant N common i
prt"4 tactt the possession at all HE cote ANTS
he selsIn Necessary to m4iutain Il bill tor par
luton {" land discussed.
3 Were a bill for ptrtIiiun states thai The
complainant and her sisters. " hu nlt elenhan'>
are each seized in lee of an undivided third in
ttres IN HE lands under IL decd from a common
grani"r, and Thai no one else j. interested ~ the
property except that their mother IA Defendant
claims Ii have some interest therein and Ia be
IN posse ssl0n of the premises and that She " re-
fuses To set tuith her interest or j,in in par
utlon, and 1t prayS that the shares belonging
TO any OF the pariies may be asrcrtained aud
settled, and partition he made LEld (a) The
OIL suftlcirnily states the quantity or proper
owners or others nterts ed, and such other mat
tiers as IN " be necessary To enable the court 10
adJudlcae upon The rights and interests OF the
paIties, as required by HE statute.
tb A decree for partition, made after de-
fault against the mother and IA report the
MASTER and adjndglng thai each of The sisters is
entitled to Il third part in lee sim Die. AMI that
partition be made and appointing commissioners
10 make II, and assign each "t them her share,
adjudIcaIcs the right, Of all the parties and that
The mother had no interest in the premises and
II Is supported by the bill
Such decree having been followed bv de-
cree OF sale after a report lu>lityiny the latter
the purchaser thercat to whom conveyance
has been male is entitled to a writ at assistance
10 put hm IN Possession against such mother
>. A defendant cannot set up in answer Ia
petition Tor a writ OF assistance, matter OF de-
ience TO complanan,s bill and Ms to which he
has been included by a decree on the merlls,Or
which he has unsuCcessiullv urged Is ground tor
opening Il decree prp rontesso.
Inc mere commencement OF an action of
eJcctment by purchas r At a judicial sale is
not OF itself sufficient 10 bii The court dccrecng
such sale from putting him in possession of the
properly purchased, by writ of assistance
against party Ia the decree.
4. After answering petition for writ of assist
ance, and hearing on the merits, and An order
, granting the writ, the defendant therein cannot
object TOR HE first Time in the appellate court to
the form of The application tor The writ.
). pom reference 10 "a master IN a partition
suit, alter decree pro c0htc~aO il is sufficient If
he traces the title To a common source.
3. A subpoena issued upon bill tor partition
of lands should state that The bill i, filed tor par
titi0n, but need not contain description of the
premises.
10 After u voluntary appearance by IL defend
ant To a bill tor p'rtlrIon, he can take no al
vantage OF any defect in the subpoena, or in the
service oT return thereof
IL Whe \ 9uif m rtlfiOn q lands a
defend III is not resident OF the circuit in which
the SUI IS Instituted, or where he Is unknown
or ware his place al residence i, unknown, ana
an "i.er To- appear and pl"ad Is made, and il or
notice thereof is published. such or'irr or notice
must contain description OF the premises
sought Ia he parlltnned.
II. All Questions arising upon or AS to tquita-
Die titles should be disposed OF in II partition
suit by he court Of equity in which The bill is
filed
ID 4 bare denial nt Il complainant legal title
in a partition suit was never obstacle 10 The
court OF equity proceeding with the cause, nor
sufficient 10 ntctss tate sucn court 10 wait I'LL
the title should b. settled at law. bu ii
necessary Tor defendant claiming ute in him
sell di-putlnL That OF the Omplaintnt. 10 set
out in his answer his own iitlc or show wherein
the companants was detective 50 that II il APP
pearcd from The showing that there was no valid
legal objection To complainant ; title The court
OF equity could proceed with The PARTITION. The
same rule will obtain under The partition salute
Ot Florida " here court OF equity can
not settle the legal ute.
II An application hY a defendant ia open a
decree pro conteS<o Will nni be .Ianted unless he
show both reasonable diligence and meriori-
Gus defence.
Decree, aft Md.
II. H. B lckmrn. tor appellant; Randall,
Walkers & Fnster, Tor Apprlic',
County Commissioners of Z Dix county, Appel