Scott v. Lloyd et ux.-Opinion of Court.

The facts as agreed upon by the parties and upon which the case was submitted, are as follows:

About January 1st, 1874, the defendants in error took possession of the property mentioned and described in the complaint, under an oral lease, for the term of three years, from Mittie Scott, mother of the infant plaintiffs, she having at that time title to the said property from her late husband, Daniel Scott, deceased, such title deed dated in November, 1871.

On the 3rd of January, 1874, Mrs. Scott filed her claim to the benefit of a homestead on the premises, under the laws of Florida, and on the 12th of August in the same year died, leaving the infant plaintiffs her only heirs.

Before the date of the deed to Mrs. Scott, given by her husband, Daniel Scott, a judgment was rendered in favor of Orff, Watkins & Co., against A. W. Mason & Co., based upon a cause of action which arose on the 30th of July, 1868, and Daniel Scott was a member of such firm of A. W. Mason & Co.; that on the 4th day of January, 1875, after the death of Mittie Scott, while the defendants were in possession under their oral lease, the property was sold under and by virtue of an execution on the said judgment, and was bought at such sale by the defendant, Sallie D. Lloyd; that defendants have been in continued and uninterrupted possession of the premises from the time they went into possession under said oral lease to the present time; that in January, 1876, defendants received written notice to vacate said property or pay rent for the same, which they have failed to do.

It does not appear from the statement of facts upon which the court determined this case, whether the mother of the plaintiffs, Mittie Scott, died intestate or not, or whether there was any administration of her estate. They commenced their action of unlawful detainer as her sole heirs, and they seem to proceed under the idea that they, as such

Scott v. Lloyd et ux.-Opinion of Court.

heirs, were solely interested in or capable of exercising control of the real estate of their deceased mother. Whatever may have been the rule under the English law, such is not now the case under the statutes of our State. Real estate, and whatever is comprehended by that term, is, by the express act of our legislature, made assets in the hands of an executor or administrator.

The act passed in 1833 (Thom. Digest,202,) is explicit and cannot be misunderstood. It provides that "real estate shall be considered assets in the hands of executors or administrators, and after the personal assets are exhausted, may be sold under an order or decree from the judge of probate, or officer discharging the functions of ordinary or judge of probate;" providing also the proceedings which shall be taken in order to make such sale valid and effectual. To such an extent did the Legislature go, that it authorized the judge of probate to decree the sale of real estate of any deceased person in preference to a sale of his slaves, where it was necessary for the payment of just debts, and where it was deemed most beneficial to the heirs, legal representatives or devisees of the estate.

The effect of this statute has been very ably commented upon by Mr. Justice Hawkins, in the case of Gilchrist vs. Filyau and wife, in 2 Fla., 94. The learned Judge says: “In England, if a man died seized in fee, the descent goes to his eldest son, and the lands are not assets in the hands of the administrator for the payment of his debts. By the laws of Florida there is no such thing as primogeniture; the lands descend in parcenary, and are expressly declared assets in the hands of the administrator or executor, and after the exhaustion of the personal assets, may be sold to pay debts due by the estate, besides being liable with personal property to an execution existing upon any judgment against such executor or administrator. Here we see all distinctions known to the English law between the real and

Scott v. Lloyd et ux.-Opinion of Court.

personal estate, as to their being assets in the hands of the executor or administrator, entirely done away, subject to some modifications to be noticed hereafter. This distinction being once established, the same rights, duties, and liabilities as to both seem to be the necessary result and con sequence." Again he says: "Although by our statute of descents the fee is clearly in the heir, so that the inheritance may remain unbroken, yet it is so cast upon him subject to the debts of the intestate, and I might add the dower of the widow. If the lands are assets, they must carry with them the incidents of assets, and when the law declares them to be such, the power to render them available necessarily follows as an incident."

The rents and profits are incident to the land, and it is obvious that the law intended that the whole estate should be subject to the payment of debts.

This opinion was approved by this court in the case of The Union Bank vs. Heirs of Powell, 3 Fla., 175, and is therefore the well settled law of the State. The right of possession is an incident of the asset, and of course must pass to the personal representative under our statutes and not the heirs. He takes the rights of possession appertaining to the ancestor, and so holds and controls them until the settlement of the estate, or he is relieved by the determination of a court of competent jurisdiction. Harwood vs. Marye, 8 Cal., 580; Curtis vs. Sutter, 15 Ill., 259; Carnall vs. Wilson, 21 Ark., 62; Thompson vs. Duncan, I Tex., 485; Edwards vs. Evans, 16 Wis., 193; Smith's Landlord and Tenant, 80.

This question is in no way changed by the act of February 16, 1870, which is the law now controlling with regard to the duties of personal representatives in the sale of real estate. By the terms of this law the real estate is made assets in the hands of the executor and administrator, and it modifies and changes some of the other provisions of the

Robinson v. Roberts-Opinion of Court.

previous statute. The same reasoning applies with equal force to the latter as to the former law.

It is not necessary to examine or pass upon any of the other questions in the case, as the judgment must be affirmed for the reason that the plaintiffs are not the proper parties to maintain the action.

Judgment affirmed.

JESSE ROBINSON, PLAINTIFF IN ERROR, VS. WILLIAM ROBERTS, DEFENDANT IN ERROR.

The Supreme Court has authority to prescribe a rule requiring appellant to give a bond or make a deposit for costs with the Clerk.

The plaintiff in error moved for a rule against the Clerk of the Supreme Court to compel him to docket the case. A rule for the Clerk to show cause was granted, and he answered the same, setting up the 21st Rule of Practice in the Supreme Court, and that the plaintiff in error had not complied with the requirements of the same, either by giving bond or recognizance, or making the deposit, which the Clerk is thereby authorized to exact before docketing a case.

D. L. McKinnon for the motion.

F. T. Myers contra.

MR. JUSTICE WESTCOTT delivered the opinion of the court.

Rule 21 of the Rules of Practice of this court provides "that the Clerk may exact security in advance for the payment of his fees, which security may be by a bond or recognizance, (to be approved by him or by a Circuit Judge or a

Robinson v. Roberts-Opinion of Court.

Justice of this court,) or a deposit of fifteen dollars before docketing a cause."

The question in this case is, has this court, under the statute of this State, or by virtue of any other authority, the power to make this rule? The rule requires of an appellant security for costs in the shape of a bond or deposit.

While the power of the English courts over this subject was derived principally from statute, under the liberal construction given to the Statute of Gloucester, (6 Ed. I., Ch. I, § 2,) still, as Blackstone remarks, it was a maxim of the English as well as of the civil law that victus victori in expensis condemnandus est, although the common law did not professedly allow any. 3 Black., 399. At common law there was no judgment for costs; each party paid his own costs as they accrued. While this is true, still the courts in England, acting either upon the implied powers resulting from the various acts of Parliament or upon inherent authority to secure its officers in the payment of statutory costs, or to protect the parties in the expenditure of costs, have, independent of any direct and express statutory authority, required security for costs in various cases. In ejectment or actions qui tam, where the lessor of the plaintiff, or the plaintiff himself, was unknown to the defendant, the court, upon certain representations, would stay the proceedings until security was given for the payment of costs; and there were many other cases in which such security was required. I Tidd. Prac., 476; 1 Str., 694; 2 ib., 932-1206; I Wil., 130-266; Cowp., 24; Bul. Ni. Pri., 112; 2 Bur., 1177; 1 H. Black., 106; 1 T. R., 362; 6 T. R., 496. This requirement was made without any express statutory authority so do to.

The like power is exercised in this country by the Supreme Court of the United States. Under Rule 10 of the Rules of Practice of the Supreme Court of the United States, the Clerk is required in all cases to take of the party a bond,