Hart's Executor v. Smith-Opinion of Court.

THE CHIEF JUSTICE delivered the opinion of the court.

Plaintiff in error contends that there was error in allowing the petitioner to amend his petition so as to show the death of Edwin A. Hart, after the return and entry of the mandate of the Supreme Court, "there being no case in court."

The Supreme Court, it is observed, merely reversed the order of the Circuit Court and remanded the cause for the further proceedings according to the law and practice. The defect appeared to be the want of a certain allegation in the petition. This court did not dismiss the petition nor order it to be dismissed. The case went back to stand as though no final order or judgment had been entered, and the matter still pending on the prayer of the petition and the answer.

After a cause is remanded to the inferior court, such court may receive additional pleadings or admit amendments to those already filed, even after the Appellate Court has decided such pleas to be bad on demurrer, unless the Appellate Court otherwise directs. The Marine Ins. Co. vs. Hodgson, 6 Cranch, 206; The U. S. vs. Boyd, 15 Peters, 187, 209.

The amendment was as clearly within the power of the court as though the Circuit Court itself had held the pleading defective for want of a necessary allegation. The statute relates to amendments of "defects in any proceeding in civil causes." Act of February 8, 1861.

The second error assigned is that the court refused to allow an amended answer to be withdrawn for the purpose of moving to vacate an order allowing a rehearing and amendment of the petition.

There is no substance in this suggestion. The respondent having waived objection to an amendment of the petition.

Hart's Executor v. Smith-Opinion of Court.

by pleading to it should not trifle with the patience of the court by thus withdrawing his waiver. The court had the power to allow the amendment and properly exercised it.

The third error alleged is the order sustaining petitioner's demurrer to respondent's amended answer.

The answer demurred to averred that respondent had not intermeddled or administered the effects of the estate of James L. Hart, deceased, and was not his executor, and that "before the amendment," he had, as the executor of Penelope Hart, deceased, filed in the Probate office a renunciation of all right to act or become the executor of said James L. Hart, deceased, which renunciation had been accepted and filed by the County Judge.

The rule as laid down in the books, in the absence of a statute changing it, is, that if there be a sole executor of A., the executor such executor is, to all intents and purposes, the executor and representative of the first testator. 1 Williams on Ex., 6 Am. Ed., 293, [254.]

In Worth vs. McAden, 1 Dev. & Batt. Eq., 199, 209, it is said that "where one who is the sole executor of another, dies after making a will and appointing executors, those so appointed may accept the office of executor to their immediate testator, and renounce the office of executor to his testator; but if they prove the will of their immediate testator generally, without such a renunciation, they become executors also of the first testator."

It seems to be the uniform rule that so long as the chain of representation remains unbroken by any intestacy, the ultimate executor is the representative of every preceding testator. 1 Wms. Ex., 294, [255.]

McCall admits what is alleged in the petition that he was acting as executor of the will of Penelope Hart, deceased, at the time the notice was served upon him in this proceeding, and says that "before making the amendment" he filed his

Hart's Executor v. Smith-Opinion of Court.

ren unciation of the executorship under the will of James L. Hart, deceased. Whatever effect this renunciation may have, if any, toward relieving him of such administration, it is certain that when he qualified as executor under the will of Penelope Hart he became (not having renounced it at the time of so qualifying) the executor of the will of James L. Hart, and was such executor at the time of the inception of these proceedings. This was sufficient to authorize the court to act and to bind the estate by its judgment, and no act of the executor could divest the court of its power in the premises.

The fourth error assigned is, that there was no evidence before the court showing that Edwin A. and Penelope Hart were the executor and executrix of the will of James L. Hart, deceased.

The first allegation in the petition is that petitioner had recovered a judgment against them as such executor and executrix. We cannot conceive that it is necessary to prove here what must have been proved before the court when the judgment was rendered against them.

All the facts necessary to warrant the order of the court re-establishing the execution are stated in the petition and proceedings before the court, and none of them are denied by the respondent, McCall, who appeared, after due notice, at every step in the case contesting and opposing the petitioner. He must be held to the ordinary rule, that what is not denied is admitted to be true.

We find no error in the judgment of the Circuit Court, and it is affirmed with costs.

Coffee v. Groover et al.-Syllabus.

ANDREW J. COFFEE, PLAINTIFF IN ERROR, VS. JAMES M. GROOVER ET AL., DEFENDANTS IN ERROR.

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A former adjudication of the cause of action is not proper ground of a motion to dismiss, but is matter of defence.

In ejectment all matters of legal defence (excepting special denials of possession and denials of adverse claim under the statute) may be given in evidence under the plea of not guilty. Special pleas of matter affecting the legal title or in estoppel should be struck out. A judgment sustaining a demurrer to such pleas will not preclude proof at the trial of the facts pleaded.

Grants of land by a government de facto of parts of a disputed territory in its possession are valid against the State which may be ultimately found to have the right, and the rights of the inhabi tants to property acquired in good faith from the de facto gov ernment, are respected. Re-affirming Groover VS. Coffee, 19 Fla., 61.

When a doubtful or disputed boundary is settled by agreement between States and duly ratified, such agreement does not operate retrospectively so as to disturb titles to property.

When a deed does not locate the land described as being in a given county or State, oral testimony is competent to identify the premises as to location and boundaries.

A certified copy of a will as "a true copy from the records of this office," without any mention that the will had been duly proved or admitted to probate and containing no copy of the probate or record of the proper tribunal is not legal evidence.

When a jury brought into a court a verdict in ejectment, in favor of the plaintiffs generally and for damages, and, before the verdict is entered in the record, the court instructed them to bring in a verdict in the form required by law, and directed that a proper form be prepared, which being done the jury retired and brought in their verdict in legal form, signed by their foreman, upon which judgment is entered, there is no error in the proceedings. A jury may vary or correct a verdict before they are discharged and before it is recorded; and a form of verdict prepared under the direction of the court, assented to by the jury, is sufficient.

A suit in ejectment is brought by seven plaintiffs, brothers and sisters, and one of them before trial dies unmarried and no execu

Coffee v. Groover et al.-Argument of Counsel.

tor or administrator is appointed, the remaining co-plaintiffs and her mother being her heirs at law inheriting equally her undivided one-seventh of the land. The mother inheriting one-seventh of the share of the deceased, to wit: one forty-ninth, and she not being a party plaintiff, the right of action for such mother's share does not survive to the six brothers and sisters; but the right of action for the entire residue of the land, to-wit: forty-eight fortyninths, does survive to the remaining plaintiffs, under the laws of this State and the rules of the Circuit Court. McClellan's Dig., 829, Sec. 73; C. C. Rules, 87.

Writ of Error to the Circuit Court for Jefferson county, to which the case was transferred from Madison county. The facts of the case are stated in the opinion.

Angus Paterson for Plaintiff in Error.

In the year A. D. 1874 the plaintiff in error brought an action of ejectment against Mary J. Groover as executrix of the last will and testament of Charles E. Groover, deceased, in Madison Circuit court; the said case was, on the application of the said executrix, transferred to the United States Court at Tallahassee, and the verdict and judgment of that court was against her, and the said Andrew J. Coffee went into possession of the land in controversy under said judg

ment.

And afterwards, to wit: The defendants in error brought this suit in Madison Circuit Court, being the heirs of Charles E. Groover, and the case was transferred to Jefferson county and tried there at the Spring term of said court, A. D. 1883. To review that judgment this writ of error is sued out.

The matter of the former trial was brought to the attention of the court by a motion to dismiss, and also by a plea to the jurisdiction and res adjudicata, which were overruled on the ground that the executrix was not a party nor

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