Rivas v. Summers

Citations

• 33 Fla. 539

Syllabus

<p>1. A proceeding for the partition of lands under the statute, is not-at law but in 'chancery, and was not intended as a substitute for or equivalent of an action of ejectment, or to be used for the sole purpose of testing a legal title^or trying an issue as to the same. Street et al. vs. Benner et al., 20 Fla., 700, reviewed and distinguished.</p> <p>2. In a proceeding for a partition of land the defendant not only remained silent as to any right to a trial of the title at law, but-after the testimony had been taken before an examiner the cause was tried by a referee appointed by the chancellor on the application of the parties plaintiff and defendant for such reference: Held, That by such reference and trial the defendant waived any constitutional right he might have had to a trial of the question of title by a jury.</p> <p>3. A defendant in a suit in equity, under the statute, for partition of land, died leaving a will and appointing his co-defendant and partner, J1 R., his executor.. By the will the testator gave to J. R. all his personal and real estate to be held in trust for the benefit of J. R’s. children, the will stating it to be the testator’s wish and request that J. R. should continue the partnership business and have the sole and exclusive use and control of all testator’s interest in the business, both real and personal, until the children should arrive at the age of twenty-one years, and that then J. R. should either pay over to each of the said children their proportion of testator’s estate, both real and personal, or should hold or invest the same for their exclusive benefit until he should deem it safe and for their interest. After such death the cause was revived against the executor and pro-needed against J. R., in his own right and as executor. The record did not show that the land was partnership assets: Held, 'That on the death of the testator the children and devisees became necessary parties for the purposes of partition, and the executor