Emeline Coy, Administatrix, &c., Appellant, vs. Mark W. Downie, et al., Respondents, 14 Fla. 544

RANDALL, C. J., delivered the opinion of the court. If the decree in this case should be allowed to stand, it is evident that both parties must suffer, and it is for this reason, mainly, that we must reverse it upon grounds other than those urged by the appellant. 1. We agree with the Circuit Court that the title to lots eight and nine was, the date of the deed to John M. Payne, and still remains, in A. II. Cole. The grantors had only a naked possession under some agreement to purchase which had not been complied with by them. There was no evidence in the case showing what amount is due him for purchase money. 2.

The title to lots 15, 16,17 and 18, was not in the grantors, but the lots were held under a lease for 99 years, upon which the rent appears to be unpaid from 1859 or 1860. The lease stands assigned to Amaziak Coy, now deceased, and the grantors, Mrs. Coy, administratrix, and her two daughters, conveyed in terms the fee, but in fact and in law only their interest in the leasehold, with a covenant to make the title to the grantee. The interest of the minor heirs was not conveyed. 3. The court found that the title to lots 10,11,12,13 and 14, was in the grantors, but to this we cannot agree.

The infant heirs were seized of an undivided interest in the right of their mother, who was a daughter of Amaziah Coy, deceased, and this interest seems to- be one-tliird of the estate, subject to the right of dower of the plaintiff, Emeline Coy, the widow. It is assumed by the appellant that the guardian’s deed under the order of the Judge of Suwannee Circuit, dated March' 6, 1867, carries the interest of the infants.

Upon examination of that order it does not appear that proper proceedings were had to authorize the making of any order for the sale of their interest, nor does the order in its terms authorize a conveyance. So far as the record discloses the matter, the guardian’s deed is of no effect. The record should show that in the proceedings for the sale of the interest of infants in real property, the statutes were complied with. 4. The mortgage covers all the interest which the mortgagee- had acquired in all the property. 5.

The court found that the damages sustained by reason of the failure of the title to lots 8, 9, 15, 16, 17 and 18 was $2,400. "We think the evidence is not sufficiently clear as to the value of those lots, in connection with the whole as a hotel property, and the rents in arrear upon the leased lots at the time of the conveyance to Payne, to warrant the finding of this precise amount. Further proof should be taken on this point. 6.

The court found that Payne sustained damages, including expenses necessarily incurred, to the amount of $1,050 in consequence of his being unable to obtain 'possession of the property after his purchase. The proofs appear to sustain this finding, and it was proper to allow such damages for a breach of the covenants in the deed. 7.

As to the finding of the court that there is $1,040 and interest due to the plaintiff, when we take into account that a proportion, (say one fourth,) of the property of the value of $10,000 belongs to the infant heirs, and that the mortgage was given upon the premise and hypothesis that the interest of the infant heirs was to be obtained and conveyed to the .mortgagor, and this not appearing to have been accomplished so far as the record shows, there was absolutely nothing duo upon the note and mortgage.

The replication of the plaintiff to the answer of Payne, moreover, expressly states that the note and mortgage were executed to Joseph Finegan to be held by him until a deed could be obtained of the interest of the minor heirs of Amaziah Ooy, and that this was agreed to by all parties and that they were assigned by Finegan to the plaintiff upon the making of the order by the judge of the Suwannee circuit, and the execution of the guardian’s deed; but as it does not appear by the proofs contained in the record that the guardian’s deed conveyed the interest of the infants, the right to enforce the mortgage by a decree does not seem to have accrued.

The right of the defendant Payne and his grantees to resist the collection oí a part or the whole of the purchase money of the. premises, under the broken covenants in the-deed, cannot be questioned, whatever appropriate offsets by way of recoupment oí* otherwise may exist in consequence of the failure of title to or possession of the whole or any part of the property, and under the express covenants of seisin of 'title in fee simple, of possession and quiet enjoyment, and against defects and incumbrances, they may be set up against and in bar of a suit to recover the purchase money, or they' may be recovered by direct action upon the covenants.

The grantors are liable for any breach of their covenants,, and as this mortgage was given to secure them, the recoupment or offsets may be made against the claim of the present plaintiff, who was one of them and who represents them in this suit. 8. The decree directs the sheriff to pay out of the ¡proceeds of the sale the rent due on the lease, excepting the rent which may have accrued during the time the property could not be enjoyed by Coy and his heirs by reason of the military disturbance. This is not correct.

There docs not appear to be-any reservation in the lease as to any interruption of the occupancy by reason of the disturbance, and it has been held by this court (in Robinson vs. L’Engle, 13 Fla.,) that where there is an express covenant to pay rent, the loss of the use of' the premises on account of the casualties of war, is no lawful excuse for the non-payment of rent. And moreover, there was no proper issue before the court upon which to decide that question between the lessor and the lessee of these premises, nor in any event could the sheriff properly determine the amount to be paid out of the proceeds.

If the px’oceeds are to be distributed among adverse claimants, they should be paid into court and distributed under ' its order after a full' hearing. 9. It does not appear to this court that the defendants, Edward N. Dickerson and A. H. dole, are necegsary or proper parties to this action. Their rights appear to be antagonistic as well as superior to those of the plaintiffs and the other defendants.

The decree of the Circuit Court in this cause is reversed, and the cause remanded with directions that such further proofs be taken by the parties as may be deemed necessary, and that the parties may amend their pleadings in such respect as may be deemed advisable, and that such other proceedings be had as may be according to law and the practice of the court. The clerk will transmit to the Circuit Court for Nassau county a ’copy of the opinion herein, together with the judgment of this court.

It is further ordered that the appellant pay the disbursements in and about her appeal, but that the respondent recover no costs.