Err Davis, Appellant, vs. David R. Shuler, Appellee, 14 Fla. 438

RANDALL, C. J., delivered the opinion of the court. ■ This was an action of ejectment, commenced in Jefferson county by the appellant claiming title by virtue of a judgment and execution and a deed executed upon a sale thereunder. ' The plaintiff, instead of merely asserting his title and right of possession, has seen fit to state the evidence of hiá rights, and says that in February, 1872, he recovered judgment in the same court against Sturgis B.

Baldwin as sheriff and, by virtue of his office, administrator of Caswell W, Branch, late of Georgia, deceased ; that an execution was issued to a constable, and after fully complying with the law relating to sales, &c., “ the following described lands, to-wit: Lot No. 139, according to the Georgia survey, containing eighty-one acres, or so much of said lot as belonged to'the said Caswell W.

Branch at the time of his decease, were knocked off and sold to plaintiff and a deed of conveyance was executed to him by said constable that he has demanded the said lands by virtue of his right and title de-. rived from said conveyance from defendant, who has refused to surrender and still withholds the same from him. An amendment to the complaint gives the boundaries of the said lands. The defendant answered, first; denying that he unlawfully withheld the premises ; 2d, that in 1863, Caswell W.

Branch, who then owned the premises, died intestate, leaving a widow and a son; in 1865, defendant married the widow; the son died in 1863, and the widow of Branch, defendant’s wife, died in 1871 intestate; that at the time G. W.

Branch died, the premises were in Thomas county, in the State of Georgia, and he had personal property in said county; that the estate was administered in Thomas county by one Smith, administrator, and under the order of the court of ordinary there, the said administrator sold the property to the defendant, who, prior to the sale, was in possession of the premises as tenant of the administrator, and since the sale in his own right as purchaser; and 3d, defendant answers that Sturgis B.

Baldwin is not and never has been the legal administrator of Branch, and the judgment and sale mentioned in the complaint are null and void. The plaintiff moved to strike out the second and third paragraphs of the answer, which motion was overruled and plaintiff excepted, and this ruling is the first ground of error-assigned. It is unnecessary to discuss this matter at much length. The first answer puts in issue the plaintiff’s right of possession. The second alleges that the property was in the State of Georgia, where it was the subject of administration and was sold under the order of a Georgia court.

If this be true, wé do not understand how it can be the subject of an actiott' of ejectment in Florida, and as the plaintiff must show that the property is in this State, the proofs to that end being subject to contradiction on the part of the defence, it was' unnecessary to plead it specially, everything relating to the location contained in this plea being proper matter of proof in this action without being pleaded. But we do not 'see how the ruling of the court one way or the other could affect the case materially.

As to the third paragraph of the answer it is certainly responsive to facts alleged in the complaint, and as to such facts, it is a complete denial and defence, if true, for a judgment against one as administrator who was not an administrator does not bind the estate, and an execution issued upon such judgment cannot legally be levied upon such estate. See Griffith vs. Fraser, 8 Cranch, 9. The second error 'alleged is, that the' court required the pdáintiff to prove that S. B. Baldwin was administrator of Caswell "W. Branch.

The complaint alleges that the plaintiff recovered a judgment against Baldwin as Sheriff and ex officio - administrator of Branch. The plaintiff by his allegations has thus confined himself to a particular mode of proving his title, to wit: that he recovered a judgment against the sheriff as ex officio administrator of the estate of Branch, and this is denied by the defendant.

No person can be divested of his estate against his consent but by due process of law, and every one whose possession is attacked may demand that every step necessary to deprive him of it has been substantially pursued according to law- The appellant insists that the sheriff by virtue of certain acts of the legislature (Th. Dig. 198,199,) is ex officio administrator in certain cases.

First, “ when any person shall die leaving property in this State, and for the space of six months thereafter no person shall be appointed administrator on the estate of such deceased person, it shall be the duty of the •'sheriff of the county ex officio to take charge of such estate, and to administer on, and settle said estate in the same manner as directed for other administrators.” And second, in case an administrator shall die or his letters be revoked and ño other person be appointed according to law, “ it shall be the duty of the sheriff ex officio to proceed to administer on and settle such estate under order of the Judge of Probate/

Section 3 of

chapter 157, approved January 7,1848, provides that “ no sheriff shall be held responsible as administrator ex officio of any estate, till he shall have been ordered by the Judge of Probate of his county to take charge of the assets of the person deceased.” Although these statutes authorize and make it the “ duty” Of the sheriff, in certain cases, to administer upon the estates of deceased persons by virtue of his office, he is not necessarily by virtue of his office an administrator.

Certain other facts must exist before he can be reqirired to act, and he can act even when those other facts exist only when ordered to do so by the Probate Judge, “ in the same manner as other administrators,” and when so ordered and empowered he becomes the administrator of the estate. Until so ordered, he cannot be held responsible as an administrator, for he has no power over the estate and can do no act which will bind the estate.

He is not an administrator, therefore, merely by virtue of being sheriff. ■ The complaint states that a judgment was rendered against Baldwin “ as sheriff and by virtue of his office administrator,” &c.

Now if the sheriff cannot administer merely “ by virtue of his office,” this allegation does not properly charge that he was an administrator so as to bind the estate of the deceased, for it does not follow that the sheriff is possessed of the assets of the estate merely because he is the sheriff.— It seems clear that he is entirely without authority to perform any act to bind the estate, unless he acts under the express authority of the court, “ in the same manner as directed for other administratorsand when he is so directed, bis acts are those of an administrator and not those of -a sheriff.

The real estate in the hands of an executor or administrator is equally liable with personal property to an execution issued upon any judgment against such executor or administrator. Th. Dig., 203. A judgment against an administrator does not bind the .real estate of a deceased person, but is only evidence of the indebtedness of the administrator as such, and an execution can only seize the lands as assets in his hands. .

We have already seen that a judgment against one as an administrator who was not an administrator, does not bind •the estate, and an execution upon such judgment cannot legally be levied upon the estate. Griffith vs. Eraser, cited anter And as the plaintiff must show affirmatively everything ner cessary to bind the estate, it rests upon him to show that his judgment is one which binds the lands in question.

The judgment may be conclusive as against the person sued to ■charge him, but as against others who were not parties and had no opportunity to defend, it is not evidence of a collateral fact, particularly of the official character of the representative, and therefore does not prove 'per se that the estate is bound. If this conveyance had been made by one signing himself as administrator, it could not be said that it would bind the estate, unless the official character of the grantor is otherwise shown. t Here, the grantor is the officer who sells and makes the •deed.

He is empowered by law to sell and convey under an execution as fully as the defendant or his attorney might do. He acts in fact as -the attorney of the defendant, appointed by law for that purpose. Cooper’s lessee vs. Galbraith, 3 Wash. C. C. R., 546. To establish a title under an execution sale there must be shown, as against a stranger to the proceedings, a valid judgment and execution binding the estate of the defendant in the judgment, and that the defendant had some title or interest in the property sold.

Real estate being by the statute assets in the hands of the administrator for the payment of debts, cannot be seized upon an execution against one who is not in law and in fact an administrator, so that to show affirmatively that the judgment binds the property in .question, necessarily requires that the proof of the official character of the defendant in the judgment and execution shall be -given in the first instance. (We do not understand that the court in the case of Hartley vs.

Ferrell, 9 Fla., 374, decides that the title of the plaintiff in ejectment is shown by proof of the execution and the deed, without also showing the judgment, when the defendant in ejectment is a stranger to the judgment and was not in possession at the time of the sale. The head note to the case referred to applies appropriately to the circumstances of the case there decided.) The ruling of the court, therefore, in requiring the plaintiff to show that Baldwin was duly authorized to act as administrator-, was correct.

The third error assigned is, that the court excluded the evidence that Baldwin was recognized as administrator of Branch by the County Court of Jefferson county. The evidence so offered was a certified copy of an order of the county .Judge to the effect that “it appearing to the-court that the said Sturgis B. Baldwin has been acting as administrator of said estate since the 24tlq day of January, 1872, that such administration is ancillary, the principal administration being in the State of Georgia; that the estate of the said Caswell W.

Branch in this county and State is entirely exhausted and that he, the said Sturgis B. Baldwin, has fully discharged his duties as administrator in relation thereto; it is thereupon ordered and adjudged that the said administrator ex officio be, and he is hereby discharged as administrator of the estate aforesaid. Done and ordered iu open court this 4th day of December, 1873.” The judge rejected this paper as evidence that Baldwin had been the administrator at the time the suit was instituted to recover the indebtedness of the deceased.

The proper evidence of the fact sought to be proved is the letters of administration, or a copy of them, or of the order direéting Baldwin as sheriff to take charge of and administer the estate, with proof that Baldwin was the sheriff. The paper offered did not show that he had ever been recognized as administrator until the date of the order .discharging him. He may have been “ acting” without authority and wrongfully, but under the statute he could not bind the estate unless he acted under the order of the court.

The order itself does not show that he had ever appeared before the County Judge for any purpose,» not even to obtain his discharge. With the records of the County Court at hand, it was not difficult to produce the order of the court authorizing him to take charge of the estate, if such order had been made. ■There was no error in rejecting the offered proof., While I have thus considered the questions presented upon the argument, it is due to the parties as well as to ourselves to make one or two suggestions. First.

The plaintiff in the complaint has scarcely succeeded in alleging any title whatever to the lands, either in himself or in Branch, deceased, and but for the admission of Branch’s title in the answer1, I should have declined to consider the questions raised upon the exceptions. Second. The plaintiff in attempting to prove' the. judgment, introduced merely the clerk’s memorandum of the default and the ides consideratum. This is not a “ record of judgment.” There was nothing to show the commencement of the suit, the service of process, the complaint or the character of the action.

The judgment appeared to be entered by the clerk upon defaxxlt in vacation, but whether this was valid or void we'could not judge, and I had some difficulty in persuading myself to consider anything beyond this, for really no judgment was proven. The defendant and the judge, however, do not seem to have questioned its sufficiency, yet we were called upon to determine as to its validity while the record fails to disclose life very existence. And while the parties have not interposed the appropriate objection to this kind of proceeding» T feel justified in offering this protest.

The judgment of the Circuit Court is affirmed.