Tootie B. McGregor, Appellant, v. James E. Kellum and Sallie Miller, Appellees, 50 Fla. 581

Cockrell, J., (after stating the facts.) We shall discuss the propositions decided by the Circuit Court in the order in which they occur in the final decree. I. Had the alleged homestead been abandoned by James Kellum, prior to the time of his death? We may admit for the purpose of the argument that except for an abandonment the heirs were necessary parties, without whom a decree of foreclosure as to it is an absolute nullity and subject to collateral attack in the manner sought by this bill.

On mere questions of fact, dependent upon credibility of witnesses, this court is reluctant to interfere with the finding of the Circuit Court, but happily in the matter before us the contradictions are but trivial and the question resolves itself therefore into one of law rather than of fact. It is shown conclusively that Dr.

James Kellum lived for ten years or more with his wife and children on the property, cultivating with little success a small grove, but was persuaded in 1886 to move to the town of Fort Myers where the greater population would enable him to utilize his profession, that of a practicing physician, to greater advantage; that he remained at Fort Myers continuously with his family until his death in 1890, and was there buried with his wife whose death preceded his a year or more; that he left a portion of his household goods at the old place, but these were all moved to Fort Myers in 1888, after a fire had destroyed an out house; that he made some attempt to keep up the orange grove for about two years, when all attempts were abandoned, and the only attention paid to the place was the voluntary act of a neighbor who occasionally went over there to secure some slight fire protection, and that during the four years and more intervening the move to Fort Myers and the mortgagor’s death neither he nor any member of his family ever saw the old place.

On the contrary, he entered at once into the active life of the town, remained there continuously, maintained himself and family by the practice of his profession there, and took an unusual amount of interest in its public affairs and local politics. We think it is sufficiently established, in the absence of a specific ruling by the court upon the testimony adduced, that he was not only a registered voter of the town, but also exercised that privilege when occasion offered.

As opposed to this intent so forcibly shown by his acts, we have most unsatisfying statements that his conversation had left on the minds of his hearers, an intent to keep the o'ld place for his children and anxiety lest he lose it because of the mortgage. His residence in Fort Myers was not of a temporary nature, but of such permanency as to cause an abandonment of his homestead rights in his former dwelling place. His failure to buy a home in town was due to financial distress rather than to the ephemeral nature of his stay. This case cannot be distinguished in principle from the rule enunciated in Murphy v.

Farquhar, 39 Fla. 350, 22 South. Rep. 681. As to the weight to be given to oral declarations, see Smith v. Croom, 7 Fla. 81. The evidence clearly shows an abandonment of the homestead. II. Irrespective of the homestead feature were the heirs of the dead mortgagor necessary parties to a bill to enforce the mortgage^ lien, which was commenced against the administrator of the deceased and had proceeded to a decree pro confesso and the report of a special master, prior to the going into effect of the Revised Statutes?

We do not now undertake to- discuss whether the absence of such parties renders the decree void or merely voidable. In Scott v. Jenkins, 46 Fla. 518, 35 South.

Rep. 101, an appeal from a decree of foreclosure in a case that was pending June 13, 1892, when the Revised Statutes took effect, but wherein it appeared that after this date the mortgagor died and the cause was revived in the name of her administrator alone, we considered the changes in the law made by the Revision and reversed the cause because the heirs of thé mortgagor who alone upon the showing made properly represented the realty, were not before the court, and further held that the mere pendency of the suit made no difference.

There it was clear that whatever rights and representative capacity the administrator possessed were controlled by the law in effect at the time of his appointment and had no relation back to the time of the filing of the original bill. Prior to the Revised Statutes it was the settled law of this State that as the posession of the realty, not the homestead, was cast immediately upon the administrator, as unconditional assets in his hands for administration he alone could represent the estate of the intestate in all kinds of actions affecting the realty.

The change was wrought by the Revisers in casting the possession immediately upon the heirs and to be taken by the administrator only by a special order of the court for specific purposes. This unconditional making of the realty assets in his hands conferred upon the administrator certain rights, privileges, emoluments, obligations and duties, including therein the capacity to represent the estate of his intestate in the foreclosure proceedings.

When the bill was taken as confessed, every right the mortgagor himself, had he been alive, and every right any one claiming under him by descent or otherwise might have set up, were effectually cut off. The proceedings thereafter were ex parte. The complainant had the right then to proceed to a decree consonant with his bill and in the language of the saving clause in

section 3,

Chapter 4055 of the act adopting the Revised Statutes, it was a “right accrued before such repeal.” The heirs then were not necessary parties. III. The failure to record the decree duly passed and signed by the judge and filed by the clerk, does not render subject to collateral attack a sale thereunder formerly confirmed by the court.

The judgment and decrees of a court of general jurisdiction as to subject matter and undoubted jurisdiction over the person are not to be set aside for failure to observe the provision of a statute, however salutary, that looks not to jurisdiction but to orderly safe procedure and the performance of which rests upon some non-judicial officer. Our statutory provision (Rev. Stats. of 1892, Sec. 1448) that “no process shall be issued or other proceeding had on any final decree or order until the same shall be signed and recorded,” contains no penalty for failure to observe it.

This statute was applied and enforced on an appeal taken directly from an order for a writ of assistance against the specific objection that the decree of sale had not been recorded. Wilmott v. Equitable Building & Loan Association, 44 Fla. 815, 33 South. Rep. 447. There we characterized the statute as “mandatory” but that we did not use the word as synonymous with or in the sense of jurisdictional is shown by the sentence following in which we expressly declined to say whether the sale was absolutely void or could be cured by a recordation nunc pro tuno.

There are authorities which appear to hold that an execution issued before recordation of a judgment is void; but so far as we have examined them they are cases of common law judgments entered by clerks, without any action on the part of the judge and in none of them did the sale pass under the judicial eye in the form of a confirmation by him. An objection might have been made at the time of the confirmation, which if not sustained by the lower court would have availed on appeal therefrom; but having failed to urge the objection in the proper way and at the proper time, it is no longer open. Price v.

Winter, 15 Fla. 66; 17 Am. & Eng. Ency. Law (2nd ed.) 1033. Some minor objections were made to the original proceedings, but these were not passed upon by the Circuit Court, nor do we feel that they are worthy of discussion by us. Let it suffice to say that there is no merit in them. There has been no substaixtial change in the status of the parties since the decree of June 15, 1892, and for the better security of the record thereof it is deemed advisable that said decree be now recorded.

It is therefore ordered and adjudged that the decree appealed from be reversed with directions to dismiss the bill at complainant’s costs upon proof that the decree of June 15, 1892, has been recorded upon the minutes of the Circuit Court of Lee county. The costs of this appeal are taxed against the appellees. Shackleford, C. J., and Whitfield, J., concur. Taylor, Hocker and Parkhill, JJ., concur in the opinion.