James N. Winn et al., Appellants, vs. Gillum B. Strickland, Appellee, 34 Fla. 610

Mabry, J., (after stating the facts): The object of the bill in this case is the cancellation, as a cloud upon the title to the lands therein described, of -the deed made under the mortgage foreclosure proceedings referred to in the statement filed with this opinion. It is contended for appellee that appellants were not in possession of the lands when the bill was filed by them, and hence they have no status in a court of chancery. The lands in question are not wild or uncultivated, nor are they alleged so to be.

It is essential that a complainant in such a case should be in possession in order to maintain a bill to remove an instrument as a cloud upon the title to his real estate. Sloan vs. Sloan, 25 Fla., 53, 5 South. Rep., 603; Haworth vs. Norris, 28 Fla., 763, 10 South Rep., 18; Patton vs. Crumpler, 29 Fla., 573, 11 South. Rep., 225. Before giving our conclusion on the point presented, a statement of the testimony bearing thereon becomes necessary. Appellee introduced a certified copy of certain proceedings had on the chancery side of the Superior Court of the Southern Circuit of Georgia, for Thomas county.

The object of the suit in Thomas county was to reform a deed executed by James N. Winn to J. J. Blackshear, in his own right and as guardian for F. J. Winn and Mary C. Sloan, minor heirs of Thomas B. Winn, deceased, and also to have a specific performance of certain agreements to convey lands in pursuance of an alleged division between the parties to the suit. F. J. Winn is complainant in the petition, and it is therein alleged that Elizabeth Winn, James N. Winn, Harriet E. Winn and Mary O. Winn were the heirs at law of Joseph S. Neely, deceased, and that Harriet E. had married Janies J.

Black-shear, who, by the then laws of Georgia, took titles to her interest; that in June, 1866, James. N. Winn gave his certain deed to James J. Black-shear for himself and as guardian for F. J. Winn and Mary C. Winn, whereby the said James conveyed all his right, title and interest in and to all the lands comprising the home place of said Neely, situated in.

Thomas county, Georgia, and which are particularly described in the petition, and that a mistake had been made in describing the lands in said deed, and certain-described lands situated in Thomas county were embraced therein that should not have been inserted, and certain other lands situated in said county intended to be conveyed were left out; that afterwards Mary C. married John H. Sloan before the death of decedent Neely, and since the act of 1866, and subsequently sold her interest in and to said lands to Harriet É.

Blackshear, but did not give her deed for the same; that afterwards a division in kind of said lands was agreed upon and made between the heirs retaining an interest in the same, whereby Elizabeth Winn got a certain designated part, F. J. Winn got a certain other designated part, and James J. and Harriet E. Blackshear got the remaining part, and that although said lands were so divided, and possession taken ac cordingly, no deeds were exchanged or given between the parties; that John H. Sloan and James J.

Black-shear had since died, and owing to the death of Black-shear, who acquired a third interest in said lands under the said deed from James N. Winn, and one-fifth interest therein under the then laws of Georgia., by right of his marriage with Harriet E., no titles could pass for his interest without an order of court; that all the other property of the said Neely estate had been duly and satisfactorily divided between the heirs at law, and Blackshear left three children living who, with their mother, were the heirs of his estate.

What the other property of the Neely estate consisted of, or how it was divided, other than above stated, is not set out in the petition. It is further alleged that on the 10th day of June, 1859, Thomas B. Winn died leaving a will, a copy of which is attached to the petition, and at the time of his death was seized and possessed of certain described lands situated in Leon county, Florida, (being the same lands involved in the present suit), and that James N. Winn, F. J. Winn, James J. Blackshear and Harriet E. Blackshear had sold their interest therein to Mary C.

Sloan, she relinquishing her interest in all ■of the estate of Joseph S. Neely, deceased, to said parties; that F. J. Winn had made her his deed, James N. Winn had failed and refused, and that Harriet E. Blackshear, as administratrix, could not make her deed, and it was impossible to get said deed made as ■ agreed between all the parties when the contract heretofore referred to was made; that James N. Winn and Joseph S. Neely were the executors of the will of Thomas B.

Winn, deceased, and the testator left certain real estate, known as the home place, situated in Thomas county, Georgia, particularly described, and a certain part of his personal property, to his widow Elizabeth Winn during her natural life, and the residue of his estate, both real and personal, together with the remainder interest in the property given to said widow for life, he gave and bequeathed to his four children, James N. Winn, F. J. Winn, Harriet E. Blackshear (formerly Harriet E. Winn) and Mary O. Sloan (formerly Mary C.

Winn); that all the property except that given to the said widow for life was duly ;and satisfactorily divided between the said children, but how the division was made is not further stated; that in December, 1870, James N. Winn gave his deed to James J. Blaekshear, trustee for his said wife, and F. J. Winn and his wife Sarah, by which the grantor sold to said parties all his interest in and to the said home place, in which he had an undivided one-fourth interest in remainder under the will of Thomas B.

Winn, deceased, and also all his interest in certain described lands situated in Thomas county, Georgia, :and which Elizabeth Winn obtained as a distributive share from the Neely estate, and in which James N. had a one-fourth interest as a prospective heir of his said mother; that about the same time James J. Black-shear and wife, John H. Sloan and wife and F. J. Winn and wife gave deed to James N. Winn to their interests to certain designated portions of the said home place; that afterwards John H. Sloan and James •J.

Blaekshear died, and still later Elizabeth Winn died, and after the death of the latter, the property known as the Winn home place, and the lots drawn by Elizabeth Winn from the Neely estate, were divided by the parties in interest and reduced to possession, but on account of the deaths of Blaekshear and Sloan who, under the said deed from James N. Winn, were made trustees for their respective wives, the latter could not make titles of the entire interests in said lands to each other and to F. J. Winn without the consent of court.

The parts that the respective parties ;got in the division of the Winn home place and the lots obtained by Elizabeth Winn from the Neely estate are particularly described in the petition. The prayer of the petition asks that a guardian ad litem be appointed for the minor heirs of James J. Blaekshear, ■deceased, and that the deed to James J. Blaekshear for himself and as guardian for F. J. Winn and Mary C. Winn be corrected in the particulars mentioned;that Mary C. Sloan be authorized and required to give deed to Harriet E. Blaekshear in her own right and as administratrix of the estate of James J.

Blaekshear, deceased, to the lands allotted to him in the division of the Keely estate in right of his wife and in his own right under the said deed from James H. Winn, and to the lands allotted to Harriet E. Blaekshear in the same division in her own right, the two interests as divided comprising certain designated lots situated in Thomas county, Georgia; that F. J. Winn give H. E. Blaekshear a deed for all his interest in the same lands, and that H. E. Blaekshear as administratrix of the estate of James J. Blaekshear, deceased, and Mary C. Sloan be authorized and required to give deeds to F. J.

Winn for all the interest of Blaekshear, deceased, and Mary C. Sloan in and to the lands allotted to him in the same division, and particularly described; that H. E. Blaekshear as beneficiary under the trust deed of James 1ST. Winn and heir at law of Elizabeth and Thomas B. Winn, deceased, be required to give deed to Mary C. Sloan for all her interest in and to the lauds allotted to her in the division of the Winn lands referred to, and situated in Thomas county, Georgia, and particularly designated; thatF. J. Winn and his wife being the owners of a one-third interest of James ST.

Winn’s interest under his deed to them, and P. J. Winn being an heir at law of Thomas B. and Elizabeth Winn, give deed to all their interest in the same lands to Mary C. Sloan, and that she, P. J. Winn and his wife offering- to do the same, be required to give deed to H. E. Blaekshear for certain described lots of land in the same division; and that H. E. Blaekshear and Mary C. Sloan give deed to P. J. Winn and his wife for all the land acquired and allotted to them under the said deed of James N. Winn, and a deed to F. J.

Winn to the lands acquired by him as heir of Thomas B. and Elizabeth Winn, and allotted to him in the division of the Winn estate. Process is prayed against H. E. Blackshear, Mary C. Sloan and James N. Winn, and the subpoena issued in the case contains on it an acknowledgment of due and legal service, a waiver of copy of bill, process and all other service, and a consent that judgment be taken at April term, 1876, and is signed by Hattie E. Black-shear, H. E. Blackshear, administratrix, Mary C. Sloan and Thomas E. Blackshear, guardian ad litem for minor heirs of J. J. Blackshear, deceased.

The final decree in the cause, based upon a finding of facts by a jury, directs that the deed from James N. Winn to James J. Blackshear, in his own right and as guardian for F. J. Winn and Mary C. Sloan be corrected in certain particulars mentioned, as prayed for in the petition; that all the parties convey and make deeds in fee simple to Mary O. Sloan to the lands situated in Leon county, Florida, and certain designated lots in the eighteenth district of Thomas county, Georgia; that Mary C. Sloan, H. E. Blackshear in her own right and as administratrix of James J. Black-shear, deceased, and James N.

Winn convey in fee to F. J. Winn certain designated lots situated in the county of Thomas; and that the several parties convey to Harriet E. Blackshear, administratrix of James J. Blackshear, deceased, certain designated lots situated in said county, as prayed for in the bill. It does not appear from anything in the record before us that deeds were ever made to Mary C. Sloan to the Leon county lands in pursuance of the decree referred to, or that any of the deeds directed therein to be executed were ever made, and except the record in said cause and the possession of the lands by Mrs.

Sloan, to be noticed, and the testimony of James N. Winn as to a partition of the lands, there is no testimony on the subject of a partition or division of the lands mentioned in the decree between any of the parties. The record does not reveal any deed from James 1ST. Winn conveying his undivided one-fourth interest in the Leon county lands to himself as guardian of F. J. Winn and as trustee under the limitations of the will of Thomas B. Winn, deceased, as alleged in the bill. James N.

Winn, whose deposition was taken, states that such deed was made, and that it was in the hands of his solicitor, and could not be attached to his deposition; but no such deed was produced, and no further notice seems to have been taken of it in the disposition of this case. Winn states that the Florida lands had never been divided, and that Mrs. Sloan’s interest therein Avas still undivided. Mrs. Harriet E. Blackshear is dead, but when she died does not appear. It is apparent that she was alive in November, 1878, Avhen the decree mentioned was rendered. James N.

Winn further states that he and his co-trustee, Neely, had possession and control of said lands up to the death of the latter, some time in 1863, and that he has continued in possession since. Some of the time, he states, the lands were cultivated under his supervision, he having an overseer to look after them, but for a considerable time he had permitted Mrs. Sloan to look after the renting of the place, as she was beneficially interested in the rents, and was nearer the lands.

Her possession, he says, was by his permission, and she rented the lands to whom she pleased and as she pleased, and had been for a number of years renting them, collecting the rents and approprinting them as she saw fit. He further states that Mrs. Blackshear s interest in the profits of said lands was off-set by profits from other lands in Thomas ■county in which Mrs. Sloan had an interest. It appears from the testimony that Mrs.

Sloan assumed the personal management of the lands in question, at least as early as 1877, and rented the same to tenants, collected the annual rents and appropriated them to her own use without accounting to any of the other heirs for any part of them. For a period of eight or ten years prior to 1890 all the tenants on the place were employed by Mrs. Sloan, and the rental con tracts were made with her. She says James N. Winn knew that she was leasing the lands, but did not know the details, and never gave any express consent.

In 1879 she executed a mortgage on the lands to appellee for $1,250, and this mortgage was paid, and in 1885 she executed two mortgages on the place, one to William M. Hammond for some twelve hundred dollars, and the other to appellee for two thousand dollars. Upon a foreclosure of said mortgages, appellee became the purchaser in August, 1889, the sale was confirmed and a deed delivered to him. Mrs. Sloan was a party defendant in the foreclosure proceedings, but the complainants in the present suit were-not parties.

At the time of the sale under foreclosure proceedings there were several tenants on the place under rental contracts with Mrs. Sloan, and the lease of a few of the tenants did not expire with the year 1889. Mrs. Sloan says she turned over these leases to James N. Winn as trustee, but it does not appear whether this was before or after the sale of the lands.

Appellee lives upon lands adjoining the plantation in controversy, and some time about November, 1889, went upon the place, informed the tenants that he had become the purchaser, and shortly thereafter entered into written.' contracts with all the old tenants and a few new ones, for the rent of the place during the year 1890. The tenants testify that appellee informed them that he had bought the place and that they must rent from him. One witness testifies that he was sent for and informed by appellee that unless witness then entered into a rent contract he would be put off by the sheriff.

Another says that he received word that unless he rented from appellee he would have to leave the place. According to the statements of some of the tenants, they hesitated about entering into contracts with appellee, and stated to him that they had agreed to rent from Mrs. Sloan, but they all went down to appellee’s store near the place, and as it appears, voluntarily entered into the contracts for the following year.. The amounts agreed to be paid for the rent by some of the tenants were some less than what they had paid Mrs.

Sloan for the previous years; and some of the tenants state that appellee informed them that they should not be compelled to pay rent to both Mrs. Sloan and himself.

Appellee testified that he was in possession of the lands when complainants filed their bill, which was on the 20th day of January, 1890, and that he took possession by going upon the lands in November, 1889, informing the tenants that he had bought the place, and renting the lands to the tenants then on the place and other new tenants for the year 1890; that the old tenants were willing to enter into rent contracts with him, and did so peaceably, and that the same rents were charged them that he rented other adjoining lands for; that he had no recollection of using the language as stated by the witness in reference to putting him off by the sheriff if he did not enter into a rent contract, and that he did not threaten any of the tenants to induce them to rent from him.

The testimony shows that new tenants -occupied portions of the lands under appellee, and that he had two wells dug, others cleaned out, and -caused tn o cotton houses to be erected by the tenants on the premises. Appellee says that about the first of January, 1890, while on the place he met James N. Winn and informed him of the sale of the place under the foreclosure proceeding, and that he (appellee) did -not want him (Winn) to come on the place or interfere with the tenants. James N.

Winn testified that he was in possession of the place when the bill was filed, but, under the testimony, his claim of possession can rest alone upon the possession of the tenants under Mrs. Sloan. He states that sometime in December, 1889, or January, 1890, he met appellee on the lands ■and informed him that the lands were in his (Winn’

s) possession as trustee, and that he must not interfere with the property or the tenants, and appellee stated that he had taken possession and intended to hold it, and that he did not want him (Winn) to come on the place again. F. J. Winn testified that the lands were rented by Mrs. Sloan in 1888 to tenants who were on the place when it was sold, and that the same tenants agreed with him in November, 1889, to rent the place for 1890 for the same rent they had paid to Mrs. Sloan, ■and to pay the rent to him as agent' for James N. Winn. According to the testimony of the tenants examined, they rented from Mrs.

Sloan, and none testify that they rented or agreed to rent from Winn. The foregoing is in substance the material part of the testimony. Appellee moved to exclude the copy of the record from the Superior Court for Thomas county, on the ground that it was irrelevant, illegal and improper testimony. When a court of chancery has acquired jurisdiction over the person of a party, in a proper case it may by virtue of its power to coerce obedience* to its decrees, enforce the performance of contracts relating to lands situated in another State.

The courts-of one State, however, have no power to divest title to-real estate situated in another State, or to appoint commissioners with authority to transfer title to such-property. The court can only act in such cases upon the person of the holder of the legal title in the foreign jurisdiction, and if such holder fail to convey by proper-deed the legal title in obedience to a decree commanding it to be done, no effect can be given in the foreign jurisdiction to the decrees so far as a conveyance of the legal title is concerned.

Although the decree in such case can not of itself operate to transfer the title-to lands situated out of the State, yet it is binding upon the consciences of the parties and may conclude-him in respect to all matters properly adjudicated and determined by the court. Such is the effect given to-foreign judgments and decrees by the Constitution of the United States, in providing that full faith and credit shall be given in each State to the judicial proceedings of another State, and the act of Congress-directing the manner in which such proceedings shall be proved and the effect thereof. Burnley vs.

Stevenson, 24 Ohio St., 474; Page vs. McKee, 3 Bush, 135; Short vs. Galway, 83 Ky., 501; Newton vs. Bronson, 13 N. Y., (3 Kernan), 587; Morris vs. Hand, 70 Texas, 481; Massie vs. Watts, 6 Cranch, 148; Watts vs. Waddle, 6 Peters, 389; Davis vs. Headley, 22 N. J. Eq., 115; Penn. vs. Lord Baltimore, 2 White & Tudor’s Leading Cases in Equity, 1806, S. C., 1 Vesey Sr. 444; City Insurance Company of Providence vs. Commercial Bank of Bristol, 68 Ill; 2 Freeman on Judgments, secs. 559-565.

It is always essential that the court undertaking to enforce the performance of such con - tracts, should have jurisdiction of the persons of the parties, and if it proceed without acquiring' such jurisdiction, either by the service of proper process or personal appearance, no effect whatever can be given to such decree. Porter vs. Bevill, 2 Fla., 528; Braswell vs. Downs, 11 Fla., 62; Drake vs. Granger, 22 Fla., 348; Sammis vs. Wightman, 31 Fla., 10, 12 South. Rep., 526. F. J. Winn was complainant in the suit of the Superior Court for Thomas county, and the court had jurisdiction of his person.

In his petition he states that he had sold his interest in the Leon county lands to Mrs. Sloan, and had- made her a deed to the same. Although no deed from him to her for his interest in the lands was produced, and nothing said about it in the testimony, we can not doubt that such deed was made as he states. His long acquiescence in her receipts of the rents and management of the place is corroborative proof of the fact that he had made such deed. At all events he is estopped, we think, by his own averments from asserting any claim to an interest in said lands as against Mrs.

Sloan, or those who have acquired title from her. We conclude, therefore, that Mrs. Sloan is shown to be the owner of the undivided one-fourth interest of F. J. Winn in the lands in her own right, as he asserts that said interest was conveyed in consideration of her interest in the Neely estate that was not trust property. The record was clearly competent evidence as against F. J. Winn. James N. Winn, although named in the proceedings as a party defendant, was not served with notice, nor did he appear in the cause, so far as shown by the record before us.

It can have no effect whatever on liim in the present proceeding. He, however, does not claim in the bill to own any interest in ,the lauds in his own right, and the suit as to him is in his representative capacity as executor and trustee under the will of Thomas B. Winn, deceased, and under a deed made to himself as guardian of F. J. Winn and trustee for the beneficiaries under said will. There is no sufficient showing before us that he executed such deed. He says that the deed was in the hands of his • solicitor, but it was not produced, and the allegation of the bill in this respect seems to be abandoned.

The answer admits that all the property of the Winn estate went into the hands of the executors and trustees under the will, but alleges that the interests of all the heirs were conveyed to Mrs. Sloan, and the only evidence introduced to sustain this allegation, aside from the possession and pernancy of the profits by her, is the record of the proceedings in Thomas county. We are unable on the showing before us to hold that the interest of Mrs. Blackshear in said lands was conveyed to Mrs. Sloan, or,that the latter owned such interest as against the children of the former.

After devising some property situated in Thomas county, Georgia, to Elizabeth Winn, the widow of the testator, the residue of his estate is bequeathed equally to his children, and as to the daughters the will provides that “Joseph S. Neely and James N.

Winn be and are hei’eby ordained trustees for my daughters, to receive and control for them their distributive shares, free from the control of their husbands, should they marry; and should said daughters die with children, then this trust property I decree to vest absolutely in said children; if they die childless, then to revert to my heirs at law exclusive of the said Betsie Winn, hereinbefore specially previded for; and I furthermore direct if said real estate be sold for the purpose of division, that the proceeds be equally divided among my children, and that the said Joseph S. Neely and James N.

Winn receive and invest for my daughters their respective portions of the trust funds realized from said sale in property to be held subject to the same trusts and free from any aforesaid marital rights that might otherwise accrue.” Authority is also given by the will to the executors to sell the estate for division if it became necessary. Mrs. Blackshear had under the will a beneficial one-fourth interest in the property for life, with a remainder to her children, she having died leaving children. James N.

Winn is the surviving trustee under the will, and, as we have be--before seen, he was not before the court when the ■decree contained in the record was made. Although named as a party in the proceedings, it is in his own right, and not in the representative capacity of trustee or executor, but the failure to acquire jurisdiction over his person renders the proceedings ineffectual as to him in any capacity. It is said in Wilson vs.

Russ, 17 Fla., 691, that “a trustee in whom is vested the legal estate is a necessary party in all proceedings affecting the estate, where there is a remainderman, for the trustee is liable for the proper care and preservation of the property.” Braswell vs. Downs, swpra. But if the presence of Mrs. Blackshear, the cestui que trust for life, before the court be deemed sufficient to authorize a decree for a conveyance of her interest in the property under the will of Thomas B.

Winn, deceased, the foreign decree itself, in the absence of a conveyance in pusuance thereof, can not have the effect under the rule above stated to transfer the title to lands in this State. And James N. Winn, the only witness on the subject, states that the Florida lands had never been partitioned. The petition in the Thomas county suit alleges that James J. Blackshear left three children, and a guardian ad litem is asked to be appointed for them, but their names are not given, and no process was prayed against them.. A person, it appears, signing his name as guardian ad litem of the minor heirs of James J.

Blackshear, deceased, acknowledged service of the subpoena, and consented that judgment might be entered against the minors in the case, but there is nothing to show that he had been appointed guardian ad litem for any minors, and no answer for them was filed. Under such an irregular proceeding we can not hold that the Black-shear complainants in the suit before us were bound by the decree. Braswell vs. Downs, supra. But still further, there is no evidence that any deed was ever made to Mrs. Sloan, in pursuance of the decree rendered, by any of the children of Mrs.

Blackshear, or any one for them, and the decree itself does not divest their titles to the lands in this jurisdiction. It can not be successfully maintained on the record before us that Mrs. Sloan acquired title to the lands in question by adverse possession as against James 1ST. Winn as trustee, or Mrs. Blackshear, or her children. ■It is true that Mrs.

Sloan for 'more than seven years before the institution of the present suit had rented out the lands and appropriated the rents to her own exclusive use, but the possession of one cestui que trust is regarded in law as the possession of the trustee, and also of a co-cestui que trust. 1 Perry on Trusts, sec. 863. Such would certainly be considered the relation between the parties, in the absence of any clear and manifest hostility on the part of the occupying cestui que trust brought home to the trustee and the other cestui que trust.

The law on the subject of adverse possession between trustee and cestui quetrust has been so thoroughly considered by this court that new citations of authority become unnecessary. Braswell vs. Downs, supra; Bloxham, Governor, for use of, vs. Hooker, 19 Fla., 163; Anderson vs. Northrop, 30 Fla., 612, 12 South. Rep., 318. There is no-hostility of possession shown between Mrs. Sloan and the trustee, James N. Winn, and both testify that the possession and management of the place by the former were by the permission of the latter. Winn says that Mrs.

Blackshear’s interest in the rents of the lands was off-set by profits of other lands in Georgia in which Mrs. Sloan had an interest. If this be true, Mrs. Sloan was not claiming adversely to Mrs. Black-shear. If the management of the place and the exclusive receipts of the rents by Mrs. Sloan be regarded as an adverse holding as against Mrs. Blackshear, it does not appear how long such possession continued before the death of the latter, and under the will her interest was only for life, with remainder to her children.

They would not be affected by the statute of limitations even if the possession had been adverse as against Mrs. Blackshear until after her death (Anderson vs. Northrop, supra), and it does not appear that she died seven years before the filing of the bill. Whatever interest Mrs. Sloan had in the lands, it is evident, passed to appellee under the foreclosure sale, and, as we have seen, she acquired the undivided one-fourth interest of F. J. Winn in the absolute right, and it is clear that she also had a beneficial interest for life in another one-fourth part.

Appellee acquired the legal title to the absolute interest, and the effect of the mortgage sale was to transfer the beneficial interest in the land for life. Wilson vs. Russ, supra. For appellant it is contended that as the possession ■of Mrs. Sloan was that of her trustee, James N. Winn, the tenants put on the place by her must be regarded as his tenants, and that appellee could not acquire possession rightfully by inducing them to attorn to Mm without a surrender of the tenancy.

The general rule that where a tenant disclaims holding under his" landlord, from whom possession was received, and attorns to a stranger, the attornment is void and does not operate as a disseizen of the landlord, is invoked. Blue vs. Sayre, 2 Dana, 213; Rogers vs. Boynton, 57 Ala., 501. While it is true that a tenant can not dispute or gainsay the title of the landlord so long as it remains as it was at the time the tenancy commenced, and no fraud has been practiced in securing it, yet he may show that the title under which he entered has expired, or has been extinguished by operations of law. Robertson vs.

Biddell. 32 Fla., 304, 13 South. Rep., 358. A sale of the landlord’s interest in the leased property puts an end to his rights under the lease. Mrs. Sloan had at least an absolute one-fourth interest in the property, and it is not true that her possession was entirely the possession of the trustee. She held in her own right as to an interest in the property, and to the extent of this interest appellee became owner, and was as much entitled to possession as any other joint owner of the property.

While he may not be entitled to- possession of the lands as against the trustee as to the beneficial interest acquired, he would clearly be so as to the absolute interest. The fact that appellee’s deed called for the entire interest in the property, would not deprive him of the interest actually acquired under it, although it could not be effective to convey the whole. It is entirely clear from the evidence that appellee before the bill was filed assumed exclusive possession of the land under his purchase at foreclosure sale, and denied any right of possession to the complainants.

The possession was taken not solely by entering into rent contracts with tenants-on the place at the time of purchase, but by putting new tenants on the place, and denying to appellant James N. Winn any right to interfere with the place. Doe vs. Clayton, 81 Ala., 391, 2 South. Rep., 24. Such an assumption of exclusive possession would authorize an action of ejectment on the part of other joint owners to recover their interest. Gale vs. Hines, 17 Fla., 773.

We think the bill was properly dismissed, because none of the complainants were in such possession of the lands in question as to give them a standing in a court* of equity for the purpose of maintaining a bill to remove a cloud from the title to real estate, and an order will be made affirming the decree rendered in the Circuit Court.