Barco v. Fennell

Citations

• 24 Fla. 378

Syllabus

<p>1. In an action of ejectment the defendant pleaded not guilty, and after-wards, filed with leave of the court, a special plea to the effect that the plaintiffs claimed title to the land described in the declaration, as heirs of the intestate of the defendant who is-still administrator of his estate, and such estate remains unsettled-Upon motion of the plaintiff to require the defendant to elect between the two pleas, he elected to stand upon the special plea: Held, That as the matter set up in the special plea could have been proved under the general issue of not guilty, the court should, of its own motion, have struck out the special plea.</p> <p>2. A present right of possession is necessary to a recovery in ejectment.</p> <p>3. Ejectment does not lie in behalf of an heir as against an administrator to recover possession of land to which the latter is entitled as an asset of the estate.</p> <p>4. An administrator is not entitled as against the intestate’s heirs to the possession of land exempt as the homestead of the intestate from forced sale for the payment of his debts under the Constitution of 1868, and ejectment will lie in behalf of the heirs against the administrator to recover possession of such land from the administrator, where the land occupied by the intestate as a rural homestead at the time of his death consisted of 160 acres or less, or where prior to his death he has, when actually occupying more than 160 acres, filed a written declaration of his homestead in the probate office of the County Judge, under act 1869, §11, p. 531, McC’s. Digest.</p> <p>5. Where one or more of the heirs is a minor, or otherwise incapable of binding himself, and the ancestor dies actually residing upon or occupying as his homestead, or home place, a tract of rural land exceeding-160 acres, and not having filed a written designation of a part thereof as his homestead, ejectment will not lie in behalf of such heirs, but the proper remedy for setting aside the homestead i