Bevill v. Smith , 25 Fla. 209 ( 1889 )

Raney, C. J.:

This is a suit in equity instituted by appellee to enjoin the sale of a quarter section of land by Bevill as a Commissioner acting under an order of the County Court of Alachua county for the sale of the land for payment of the debts of one John Yance, deceased. The ground of this application for equitable relief is that the sale, if made, will cast a cloud upon appellee’s title to the land.

The only defendant to the suit at the time the injunction was granted, was Bevill, in his capacity as Commissioner, and there was consequently an entire absence of necessary parties. In such a case the administrator or other representative of the estate is a necessary party, if not the only proper one. Merritt vs. Daffin et al., 24 Fla., 320, and cases cited; Alston vs. Rowles, 13 Fla., 110, 116; Scarlett vs. Hicks Id., 314; Loring vs. Wittick, 16 Fla., 495; Robinson et al. vs. Springfield Co., 21 Fla., 203, 234; High on Injunctions, section 1551.

Mason, the administrator of Vance, having been subsequently made a party defendant, he demerred to the bill. There is clearly no equity in the bill. It alleges that the appellee is the lawful owner of the land under a good and valid title executed to him by the proper officer, the Clerk of the Circuit Court of Alachua county, and bearing date July 7,1884, and duly recorded in the records of said county on the 9th day of the same month. The land was sold for taxes of the year 1882, on the 4th day of June, 1883.

The bill does not state that appellee was in possession of the land either in person or by tenant at the time the bill was filed or anything as to possession; non constat but that the administrator was in possession. If the appellee has a good tax title his title is of course legal, as distinguished from equitable, and possession is an essential to equitable jurisdiction to prevent a cloud upon title where the complainant’s title is legal, for if he is not in possession he has a full and adequate remedy at law. Cavedo vs. Billings, 16 Fla., 261; Sloan vs. Sloan, 25 Fla. — ;S. C. 5 So. Rept. 606; 2 Story’s Equity Juris., section 700, note.A; 3 Pom. Eq., section 1399 and note 4. In the absence from the bill of an allegation of possession in the complainant, it is demurrable. There is nothing in “ the act in relation to injunctions” Chapter 343 2, approved February 12,1883, or in the Revenue Law under which the tax sale was made, that modifies the doctrine of this paragraph in case of a suit instituted by the person claiming under a tax title.

It is not necessary to notice other errors.

The order overruling the demurrer is erroneous, and the cause will be remanded with directions to vacate the same and the order granting the injuncting. It is so ordered.