Bennett F. Neal et al., Appellants, vs. Joseph H. Spooner, et al., Appellees, 20 Fla. 38

Ti-ie Chiett Justice delivered the opinion of the court. ' I. The appellants assign for error the ruling of the court in sustaining the plaintiff's demurrer to the second plea, and in sustaining the plaintiffs’ motion to strike out the third and fourth pleas. Upon examination of the second plea it is at once perceived that it sets up a claim of title and possession under a tax deed executed five days after the tax sale, whereas the statute forbade the execution of the deed until one year after the sale. The deed was, therefore, void upon its face.

Besides this, this plea in terms alleges possession by defendants from June 4,1875, less than seven years before the commencement of this suit..' The plea further fails to set up the facts constituting an adverse possession or claim. • The plea was, therefore, bad in substance and in law. The third and fourth pleas were struck out, on motion, as being unnecessary and immaterial. If pleas of the statute of limitation or of adverse possession were proper, there is no fact alleged in these pleas which if proved would constitute a defence and they could not be sustained. They were properly struck out on motion.

In Wade vs. Doyle, 17 Fla., 522, 531, it was decided that under the plea of not guilty in ejectment, evidence to prove adverse possession is admissible, and a special plea of the statute of limitations should not be allowed and should be struck out. II. Error is assigned in that the court refused to admit the record of the tax deed in evidence without other proof. This ruling was right upon several grounds.

(1) No proof was offered in connection with the record to show the genuineness of the deed, the record under the statute not being per se evidence of its execution. Hogans vs. Carruth, 18 Fla., 587. (2.) This deed was void upon its face as airead',* stated, its execution, at its date, being forbidden by statute. III. Error is assigned in allowing appellees to amend their declaration by striking out the name of Mary E. Spooner, one of the plaintiffs, and in inserting after the name of Sarah E. Spooner, “ a minor who sues by her next friend, Joseph H. Spooner,” after the testimony was closed.

The record recites that after the testimony was closed plaintiff’s counsel moved to amend the declaration by striking out the name of Mary E. Spooner as a plaintiff; also to insert after the name of Sarah J. Spooner the words, “■ a minor who sues by her next friend, Joseph H. Spooner,” which motion was opposed by defendants’ attorney and was granted by the court, to which the defendants excepted. The act to amend the pleading and practice in the courts of this State, approved February 8,1861,

Chapter 1096, authorizes the Judge to exercise a large discretion in allowing amendments to pleadings and proceedings; and

section 6 of that act (corresponding substantially to

section 35 of the English Common Law Procedure Act of 1852) authorizes thtjse amendments to be made by the Judge at the trial and before verdict, when it shall appear that there has been a mis-joinder of plaintiffs, or that some person or persons not joined as plaintiffs ought to have been so joined, and the defendant shall not at or before the time of pleading have given notice that he objects thereto, if ir shall appear to the Judge that the mis-joinder or non-joinder was not for the purpose of obtaining an undue advantage, &c. Such amendments are discretionary. See Day’s Com.

Law Pr., 4th Ed., 74, and decisions of the English courts cited under that section. In such eases this court will not interfere if the Judge do not plainly appear to' have been wrong. Sainsbury vs-Matthews, 4 Meeson & Welsby, 347. And grave doubts exist as to the right or duty of the court to interfere with the exercise by the Judge presiding at the trial of the discretionary power vested in him. Tennyson vs. O’Brien, 5 Ellis & B., 497; Milkin vs. Reed, 15 C. B., 192. There is no doubt that under, the sixth

section of the act of 1861 the Judge-might, before the cause was submitted to the jury, as he did, allow, the name of Mary E. Spooner to be struck out, as it appeared in evidence she had no title. It is equally clear that the name of the plaintiff, Sarah J. Spooner, she appearing to be a minor, might be struck out and again inserted “ by her next friend ” as a plaintiff. This was the effect of the action of the court. The issues as to the title of the land were not affected by the amendment allowed. Alary E. Spooner was the widow of the former owner under whom the other plaintiffs claim title.

That she may be entitled to dower in the land does not invest her with a title or make her a necessaiy or proper party in ejectmentThe legal title was in the heirs at law. As to Sarah J. Spooner she was under the age of twenty-one years when the suit was brought and no next friend had been appointed, but a next friend was appointed by the action of the court before the trial concluded and no -motion had been made by defendants to set aside the proceedings or to dismiss the suit as to her. This was sufficient. Fitch vs. Fitch, 18 Wend., 513.

Et is objected further that no bond had been given by the next friend as required by

section 32, act of Rovember 23, 1828, conditioned to secure the money to be “ recovered to the use of the infant.” The defendants, however, made no motion on account 'of the omission to give bond, and indeed it was no concern of the defendants that a bond had not been given. The bond is required only for the protection of the minor in the event of a recovery of money. IV. An error is assigned in that the Judge added a qualification to an instruction prayed by the defendants, in other words, that the Judge refused to give it as requested.

Ho objection or exception having been taken to this action of the Judge, it cannot be urged as error on appeal. Meinhard vs. Lilienthal, 17 Fla., 501; Burroughs vs. State, id., 643; So. Ex. Co. vs. Van Moter, id., 78-3 ; Stewart vs. Mills, 18 Fla., 57; Wilson vs. Marks, id. 322. V. It is further assigned for error that the court erred in not. stating in the judgment the “quantity of the estate * the plaintiffs had in hand.

The judgment reads as follows ; “ Wherefore it is considered by the court that, the plaintiffs do recover of the said defendants the said lands in controversy, to wit:” (describing the land) “ and that a writ of possession do issue therefor; and.that the plaintiffs do recover of the said defendants the sum of one cent together with their costs,” &c.

Section 2 of

Chapter 3244, Laws of 1881, (McC’s. Dig., 481,) requires that “ the judgment awarding possession shall state the quanity of the estate and give description of the laud recovered.” The judgment here fails to state the quantity of the estate, whether in fee or for a term, whether of the entire or an undivided interest, or otherwise showing by the judgment of the court what interest is recovered aud to be delivered. While we find no error in the record sufficient to require a new trial, yet because of the want of a proper judgment as required by the statute, the judgment here entered must be set aside.

Therefore it is considered and adjudged that the final judgment rendered in this cause by the Circuit Court for the county of Jackson he vacated, and set aside, and the cause is remanded with directions that a proper judgment Re entered in accordance with the verdict and pursuant to the statute.