Sim Asia, Appellant, vs. Edwin P. Hiser et al., Appellees, 22 Fla. 378

Mr. Justice Raney delivered the opinion of the court. I. Ejectment is an action for the recovery of the possession of real estate, and, under the act of 1859, the mesneprofits for the detention thereof. McC.’s Dig., p. 480, §1. The act of 1881, Ibid, secs. 4, 5, p. 481, provides that the verdict shall, when for the plaintiff', state the quantity of the estate of the plaintiff and describe the land by its metes and bounds, number of the lot or other certain description, and the judgment awarding possession shall in like manner state the quantity of the estate and give description of the land recovered.

It was not the purpose, nor is the effect, of the act of 1881, to take from the jury the function of passing upon the question of possession. A recovery of possession is still the chief purpose of the action. The object of the act of 1881, in requiring the statement of the plaintiff’s estate was, it would seem, that the jury should find, and the verdict and record show, what estate’ in the land the plaintiff is entitled to recover and hold as against the defendant, whether a term of years, life estate, or fee simple.

An inspection of the second verdict returned will discover that it is a mere declaration of the fact that the-fee simple title to land is in the plaintiffs, and says nothing upon the question of the right of possession. There is in the language of the verdict nothing implying a finding upon the plaintiffs’ right of possession, no finding the defendant guilty of the trespass and ejectment in the declaration mentioned, nor tantamount language, but simply a statement or finding as to the title as above set forth, and nothing more.

The fact that the fee simple title is in the plaintiff, is not necessarily inconsistent with the defendant having a present right of possession for some period of time under the former’s title. The jury, in their first verdict, passed on this question by finding that the right of possession was in the plaintiffs, but not only put into the verdict conditions which had no place there, but also omitted to state the quantity of the plaintiffs’ estate, and to describe the land.

Confining our remarks to the form of the verdict we do not hesitate to say that the Circuit Judge very properly sent the jury back to bring in another verdict both on account of a part of what it contained and what it omitted. Whether the omission of the second verdict to pass upon the question of possession was intentional, or, as is most probable, entirely unintentional, it is still a fact that there is no verdict to support the judgment, and the case must consequently go back for a new. trial. Proffatt on Jury Trial, §444. II.

The record before us shows that no action has been taken by the plaintiffs on the second plea. If a good plea it should be replied to; if not good it should be demurred to, or a motion made to strike it out, as may be proper. We express no opinion, however, as to its merits. If, however, it is a good equitable plea, then the general issue, which is also pleaded, does not cover it.

A failure to reply to an issuable plea properly pleaded and not abandoned, and requiring something more in reply than a mere similiter, is, we may remark, an error, which according to the practice of this court may be taken advantage of primarily, even on appeal. Benbow vs. Marquis & Co., 17 Fla., 441; Livingston vs. L’Engle, Trustee, 22 Fla. In view of the state of the pleadings it is unnecessary to say anything as to tender. The doctrine is discussed in Wait’s Actions and Defenses, Vol. 7, under the title of Tender, and in Spann vs. Baltzell, 1 Fla., 301; Forcheimer vs. Holley, 14 Fla., 239; Mathews vs.

Lindsay, 20 Fla., 962; Sanford vs. Cloud, 18 Fla., 532. III. It is held in Duncan et al., vs. Jackson, 16 Fla., 338, that before the proceedings contemplated by

chapter 233, of the statute, (chap. 132, McC.’s Digest,) can be instituted by a defendant in ejectment in cases to which it is applicable, there must have been judgment in favor of the plaintiff. The application was premature in this case, even if the statute applies to it. Mountain vs. Roche, 13 Fla., 581; Jones vs. Craves, 21 Iowa, 475. The Judgment reversed and new trial granted.