John B. E. Sloan et al., Appellants, vs. Susan M. Sloan et al., Appellees, 21 Fla. 589

Mr. Justice Raney delivered the opinion of the court: The purpose of the bill in this case is the removal of a cloud upon title to real estate. We meet at the threshhold, upon reading the record, the fact that there is a want of necessary parties. Neither the common law, the law of nations, nor _ the statutes of this State permit a suit to be maintained in our courts against an executor or administrator who has obtained his letters testamentary, or of administration from the courts of another State; or, in the language of Judge Forward, in Gordon vs.

Simonton, 10 Fla., 196, “ in the absence of any statute the well settled rule is that a party cannot sue or defend in our courts as executor or administrator, under the authority of a foreign court of probate, for the reason that our courts will recognize the personal representative of the deceased in his representative character, unless-clothed with authority derived from our law. The statute of our State does clothe foreign executors and administrators with authority to bring suits, but does not authorize them to defend suits.” Story’s Conflict of Laws, §514 ;. McClellan’s Digest, §73, page 97.

They are authorized by statute upon producing probate of wills, or letters of administration duly authenticated under the act of Congress, “to maintain actions in the several courts of this State under the same rules and regulations as other plaintiffs.” It does not occur to us now that even the provision in our attachment laws, (§5, p. 112, McClellan’s Digest,} as to executors or administrators who may have removed from or reside beyond the limits of the State, is any exception to the above rule; but if it is such it does not apply here. The executors and executrix of William P.

Hall, who,, after his death, were by consent made parties defendant to represent his interests, as appears in the statement of the case, cannot, by virtue of their authority as such from the court of South Carolina, defend this suit. It would be idle to argue that consent can give the right or power.

The record does not show the will, nor whether it conforms to the laws of Florida as to wills of realty ; (20 Fla., 849 ;) nor any probate here of the will; (sec. 3, p. 77, McClellan’s Digest;) nor any record made of a foreign probate in our Probate Court; (sec. 8, p. 987, McClellan’s Digest;) nor any devise of the lands in question to the executors or executrix. It shows, at most, only that such executors and executrix “are thelegally qualified executors and executrix of the last will and testament of W. P.

Hall, late of Charleston, deceased, and are authorized ” [under fhe laws of South Carolina] “ to receive all money, principal and interest, income, dividends, rents, profits,” &c., and this by a “ certificate ” of letters testamentary or executorship on the last will of Hall from the Judge of Probate of that county, which certificate, it may be, serves the purpose of letters testamentary in that State. Their right to represent Hall’s interest depends then, so far as appears in this record, wholly upon, their authority from the Probate Court of South Carolina, and this is of no effect here.

Hall is not shown nor claimed by the bill to have the ■status which would have made him a merely formal party, his interests were materia]. The title deeds from Matthews, sheriff, and ex-officio administrator, purport to ■convey the land it covers to him and J. B. E. Sloan, as alleged in the bill in fee, as does the deed from Gary the tax •sale lands. The answer of Sloan adopted by the other defendants states that the former 'land was paid for, “

part in cash, and part by the notes of William Sloan, which this respondent and said Hall then held and owned,” and that they have since- been in possession and control of it, .and have expended large sums of money in improving the •same and have paid the taxes, and that they purchased the fax sale lands for value. The .basis of the title to the former lands is the proceedings in Marion County Court, and of that to the latter is the tax assessment. Both, with the conveyances founded thereon, are. attacked in the bill as illegal and void. They, including the conveyances, cannot be.illegal and void as to J. B. E.

Sloan, and not so as to Hall, under the theory of this bill; nor can they, be adjudged void, and cancelled and the deeds be delivered up for cancellation, without essentially affecting the rights of Hall, as well as those of Sloan, nor is it sought to do so. The proceedings in the County Court, the assessment, and the deeds are each assailed and sought to be set aside and •annulled, and the deeds to be delivered up for cancellation as an entire thing; and it has been decreed accordingly,, after Hall’s death, without any one entitled to represent the interest he held being before the court.

We are not satisfied that the persons entitled to represent such interest would not be indispensable parties, even if it had been sought to proceed against Sloan without them; but nothing of the kind has been attempted, and there is a decree annulling the title, both as to Hall and Sloan. Shields vs. Barrow, 17 How., 130; Robertson vs. Carson, 19 Wall., 94; Coiron vs. Millaudon, 19 How., 113; Brookes vs. Burt, 1 Beavan, 106, 112 ; Story’s Eq. Pl., §159. Whether Hall died testate or intestate as to this land we do not know.

His heirs or devisees, according as he died testate or intestate, as to the land, in the absence of an executor or administrator duly appointed by a competent court in this State, are necessary parties; and, on the other hand, if there be such an executor or administrator, he will be a necessary party, and the heirs or devisees will be, at least, proper parties. Hew parties cannot be made, under the circumstances, in this court, so we must reverse the decree, and send the case back to the Circuit Court, where such parties can be made, and such other proceedings taken as are proper. Alston vs.

Rowles, 13 Fla., 110; Russel vs. Clarke, 7 Cr., 69. It is so ordered.