
    Sanchez’s Administrator and Administratrix, Appellants, vs. Hubbard L. Hart, Appellee.
    An administrator in this State has the right of entry into and the right of possession of the real estate of his intestate, and can maintain ejectment. His right to recover follows bis right to rents and profits, and because lands are assets In his hands with a power to cultivate the same. The basis of his action is the title of his intestate. His estate, interest .and power, after recovery, is limited by the incidents and duties which the law attaches to him, and with which his possession is surrounded.
    Appeal from the Circuit Court for Putnam county.
    The facts of the case are stated in the opinion of the court.
    
      F. O. F. Sanchez for Appellants.
    This is an action of ejectment brought by the plaintiff for the recovery of a certain lot of land in the town of Pa-latka, in the possession of, and claimed by the defendant.
    The defendant demurred to the declaration, upon the grounds that administrators could not maintain ejectment and were not proper parties.
    The demurrer was sustained by the court.
    Plaintiffs then moved to amend by making the heirs at law parties. This motion was refused by the court.
    The court then dismissed the suit, from which order /and ruling plaintiff appeals.
    I submit upon the part of the plaintiff, to sustain the first ground of error assigned, that under the law of England, the estate descended under the law of primogeniture to the eldest male heir, that upon his death to the next, &c., the title vests in the heir. (Blackstone, 2 Voi., 213, 214.)
    In England the heirs are necessary parties to an action of ejectment for realty; here they are not.
    By virtue of our.statutes, and the duties imposed, and the rights conferred upon administrators, administrators are necessary parties, heirs are not; they may be made parties, but are not necessary parties.
    • That owing to the legislation of our State, “making land, assets,” &c., in hands of administrators, the heirs taking subject to administration, the right to control and possess is an incident to the assets, &c., &c. As it affects the point here raised, the administrator, for thé purposes of this suit, is subrogated to all the rights of the heir and the power incident thereto.
    I submit that the administrator in this State does not occupy the relation to the realty that he does in England. That by our statute the realty is declared assets in his hands. (Thomp. Dig., page 202, sec. 2.) This statute de- • daring it assets, carries with it the power to control, otherwise it could not be administered; this power is incident. (2 Fla. Eep., Gilchrist vs. Filyau, page 94; 3 Fla. Hep., Union Bank vs. Heirs Powell, 175.)
    Beal estate in the hands of an executor or administrator is liable to execution on judgment. (Thomp. Dig., page 203, sec. 5.)
    The statutes provide that the executor or administrator shall be made parties within five years to revive judgment. (Thomp. Dig., page 444, sec. 2.)
    That in many of the States administrators have been declared proper parties. (10 Ga., Dean vs. Gray; 3 Mass., 258.)
    The statutes provide that when an agreement to convey real estate is made and the person dies, the adminis'trator shall execute the conveyance of the real estate. (Page 213^ sec. 1.)
    This court has in a late case decided that the administrators were proper parties to an action to recover possession of realty. (See case, heirs of Scott ys. Lloyd, 16 Fla.)
    The heir takes subject to the administration, and until the estate is fully administered, the administrator has the control and disposition of the property, and is therefore necessary party.
    As to the second ground of assignment, I submit that there can be no doubt but that we were entitled to an amendment under our statute of 1861, chap. 1096, sec, 74. Admitting that the administrator had no right to bring the suit, then the heirs were proper parties, and the amendment should have been allowed; 'if not necessary, they were certainly not improper parties; they had the right at best to come into court, and the court was not authorized to say that there was a want of parties. (1 Fla. Kep., 437; 13 ¿a., page 519.)
    
      Fleming & Daniel for Appellants.
    There are only two points involved in this appeal:
    1. Is the administrator the proper party plaintiff in an ejectment suit when there is nothing in the declaration to show that the estate he is administering is in debt ?
    2. If the heir in such case is a necessary party, can he be made a party by motion under section 74 of the Pleadings and Practice act, chapter 1096, of the Laws of Florida.
    It will not be denied that under the common law, the heir was the only proper party to maintain ejectment for lands helds in fee by his ancestor.
    Where the testator or intestate dies possessed of real estate, s for a term of years his personal representative may bring ejectment to recover the land. But this right is generally confined to those lands which the testator held for a term of years.
    There may be statutes existing in some of the American States which authorize the personal representatives of the deceased to recover in ejectment real property, held by the testator or intestate, other than for a term of years, or during the life of another; but usually these latter estates are the only ones which can be recovered by the personal representatives of the deceased. (Tyler on Ejectment, page 178; Adams on Ejectment, page 118, 4th Am. Ed.)
    Is there anything in our practice, or have any statutes been enacted to change this rule. "We contend not.
    The action of ejectment involves necessarily the question of title; it must then be brought by him in whom the title is vested..
    “Whenever any person having title to real estate of inheritance shall die intestate as to such estate, it shall descend in parcenary to the male and female kindred.” (Thomp. Dig., 188.)
    The descent does not, as'in England, go to the eldest son, but to tlie Idndred in the course prescribed by the statute. In other words, to the heirs.
    The title by our law descends to the heirs.
    The action of ejectment is to try the title to real estate, and if the better title is shown to recover possession.
    What does title mean as applied to real estate? What is the definition? “The means whereby the owner of lands hath the just possession of his property.” (Coke’s Lit., 345; 2 Blackstone Com., 345; 1 Ohio, 349.)
    Can the administrator be considered the owner of the realty in any proper sense? Has he the right “to enjoy it and to do with it as he pleases?”
    The heir then, we submit, is the proper party to contest the title.
    But it is contended by the appellants, that the decisions already made by this court are conclusive of the questions under discussion, and to sustain his position cites: Gilchrist vs. Filyau, 2 Fla., 94; Union Bank vs. Powell, 3 Fla., 175; Scott vs. Lloyd, et -ucc., 16 Fla., 151.
    An examination of them, we think, will show that in none of them were the questions presented which this case presents.
    In Gilchrist vs. Flynn, there was no question as to the title, right of entry or possession, the subject of controversy being as to whether an action of debt could be sustained against the heir upon the bond of the ancestor, the court holding that such action did not lie, although the heirs be expressly named.
    The reasoning pursued is that by the law of England, the obligee of a bond could sue the heir when he is expressly named in the bond; because as the lands descended to the eldest son, they were not assets in the hands of the administrator for the payment of debts. But our law has changed all this. Lands in Florida descend to the male and female kindred in percenary, and after the personal assets are exhausted lands are assets in the hands of the administrator for the payment of debts. That 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 may add (says the Judge) “the dower of the widow.”
    That on the failure of personal assets, the administrator, notwithstanding the title in the heir, may resort to the real estate for the payment of debts. That the statute points out the method which he is to pursue in subjecting the lands to sale, by application to the Probate or Circuit Court, for an order of sale, &c. The court then concludes that the statute has prescribed the method to be pursued in making the lands subject to the debts of the intestate, that method thus pointed out must be pursued, that as it is in derogation of the common law, it destroys the ancient remedy against the lien. The question of title, possession or the right of possession, did not arise in the case, and was not alluded to. The question’was, who should pay a debt? and the court decided the administrator should.
    The main question, decided in case of the Union Bank vs. the heirs of Powell, was that the lands being assets in the hands of the administrator for the payment of debts, it is necessary to make the. administrator a party in a proceeding by. scire facias, to subject the lands to the payment of a judgment against the intestate. The course of reasoning is substantially the same as in the case of Gilchrist vs. Filyau.
    In neither of those cases is it intimated that the admin-tor lias, by force of the statutes, the right of entry upon, or the possession of real estate. On the contrary, both cases announce the doctrine that upon the death of the ancestor, the fee vests in the hew, but he takes it subject to the payment of debts, which may be interpreted to mean that the heir takes the land absolutely in case there are no debts, or in case the personal assets are sufficient to satisfy them.
    As to the case in 16 Fla., Scott vs. Lloyd. The administrator or executor may be the proper party in an action, from which, by statute, all questions of title are excluded, as in the action of unlawful detainer, but .we doubt very much if our learned court will hold that the administrator is the proper party to a suit where the title must be established in the plaintiff, and the right of possession under the title so established, and the plaintiff must recover upon his exhibition of title in himself. How it cannot be said that the administrator has any title in the lands, for the statute which changed his relation to 'the land is in derogation of the common law and hence it is to be strictly construed, and as it does not pretend to give him any right of possession, it will not be inferred that such was its intention.
    
      The power of the administrator over the lunds is:
    1. Conditional, in that it depends upon the contingency, which may or may not occur, that the personal assets are insufficient to satisfy the debts. If there are no debts or the personalty is sufficient to satisfy the debts, then he could have no power over the realty and the right of possession would be absolute in the heir or heirs, as the case might be. Surely in such case the administrator could not maintain ejectment.
    
      2. The power of the administrator over the land is limited, and to be exercised “sub modo” On the failure of the personal assets he can exercise this power, not a? an owner, but as prescribed by the statute, that is to apply for- the order of sale, advertise, sell, &c. By this method and by operation of the statute the title is transferred from the heir to the purchaser at the administrator’s sale, just as the title to a bankrupt estate is vested in the assignee by the register’s'deed. It cannot be said that the statute vests any title in the administrator, for he can do no more than to exercise the express statutory power to sell the lands and the judicial proceedings which carry the sale into effect, including his own official action, and the order of the court simply operates to divest the heir of his title, and to confer it on the purchaser. The title does not go out of the heir unto the administrator, and from him to the purchaser. The title then is never in the administrator, and if he has no title, how can he maintain ejectment?
    On tlie other hand, the title descends to the heir subject only to the payment of debts. The title must continue in the heir until it is divested by a sale for the payment of debts; until this occurs, he can maintain ejectment,,for until such sale it is always uncertain as to whether the lands will be sold. At all events, until his title is thus divested he is in the condition of one holding- a title and entitled to enter, but • who had previously encumbered the lands by mortgage or otherwise. He maintains ejectment because lie has the title, although a stranger may hold a lien on the land's to which they may be subjected. If then the title is always in the heir, and never in the administrator, the former can maintain ejectment while the latter cannot.
    
      We submit then that there is nothing in our practice or statutes that alters the common law rule, and the decision in 16 Florida does not conclude the argument; if it does, -we respectfully ask for its reconsideration.
    To maintain ejectment, the plaintiff must -have title at the date of the demise laid in the declaration, and must show* title in himself at the commencement of the suit, and moreover, ejectment cannot be maintained unless the plaintiff has the legal estate. These propositions ‘cannot be denied.
    An administrator cannot in any proper sense be sáid to have the title or the legal estate; and we say this bearing in mind what may be said as to the signification of the word “title” as used in connection with the action of ejectment.
    Possession may by length of time ripen into a title, but unless the estate is in debt the administrator neither has possession, nor the right of possession.
    There is nothing in the record in this case to show that the estate of Sanchez is in debt. The form used for the declaration is the one prescribed- in the act of 1859, chap. 9‘99; and it is worthy of note that in this form are used the words, “that whereas, the defendant is in possession of a certain tract or parcel of land to which the plaintiff claims title” showing that it was never presumed that an administrator could be plaintiff.
    If the court holds that an administrator can maintain ejectment, must he not in his declaration set up. the facts which entitle him to the possession of the real estate; such as the indebtedness of the estate upon which hi3 right is based?
    If the administrator was hot the proper party, clearly the heirs could not be made parties on motion. The 74th section of Blount’s Code is broad, very broad we admit, but not broad enough to authorize the making of new parties on motion.
   Me. Justice Westcott

delivered the opinion of the court.

This is an action of ejectment. The declaration is in the form prescribed by statute. To the declaration there was a demurrer. The demurrer was sustained. This action is brought by administrators, and the first question presented' by the record is, can an administrator maintain ejectment in this State? It must be admitted that at the common law, except as to lands held for a term of years by the intestate, the general rule was that he could not maintain ejectment; and such, we think, from a rather extended examination, is the rule in most of the States of the Union. It is admitted, however, that it is a matter over which the legislative department of the government has plenary power, and the question here is one of statutory construction.

Under our statute of descents, it is provided that “whenever any person having title to real estate of inheritance shall die intestate as to such estate, it shall descend in par-cenary to the male and female kindred.” This act was passed in 1829, and in 1833 another statute was passed which provided 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. * * * * * Provided, that no sale of real estate shall be made to any greater extent than shall be necessary to supply the deficiency of personal assets for the payment of the just and lawful debts of the deceased.” Under the same act it was pro.vided that “real estate in the hands of an executor or administrator may and shall be equally liable with personal property to an execution existing upon any judgment against such administrator or executor.”

Under the statute now in force in this State, chapter 1732, Laws, it is declared in general terms that “real estate shall be considered assets in the hands of an executor or administrator.”

The direct question whether an administrator can maintain ejectment in this State has never been decided, but this court in construing the statute of 1833 (1 Fla., 94,) has held that “an action of debt cannot be sustained in this State against the heir upon the bond of the ancestor, although the heir be expressly named.’” The reason given for this conclusion was that, at common law the land descended to the heir, and this action being allowed against the heir, no benefit could accrue to the obligee unless he had execution of the lands descended, and because in England lands were not assets in the hands of the administrator for the payment of debts, while in Florida the heir was not entitled as against a creditor even to the rents and profits since the death of the intestate, and lands were assets in the hands of the administrator subject to be sold, after exhaustion of personal assets, and liable with personal property to an execution upon judgment against the administrator. The rents and profits were held to be incident to the land, it being obvious in the view of the court that the law intended that the whole estate should be subject to the payment of debts, and that because lands were assets in the bauds of the administrator so long as there were any subject to the debts, the plea of pUne administravit could not be interposed. In the case referred to this court.said: “Lands may be deemed assets sub modo or conditional assets as contended for, but still they come within the purview of the term assets, which -is defined property in the hands of the executor or administrator that is sufficient to malee him chargeable to a creditor, legatee or party ieu distribution, so farassuch property extends." The italics &re by the present court.

In ’a subsequent case, Union Bank vs. Heirs of Powell, 3 Fla., 175, this court held that upon the death of the ancestor the fee vests in the heir, but he takes it subject to the payment of debts. In the same case the court held that “lands being assets in this State in the hands of the administrator, it was necessary, in a proceeding by scire facias against the heirs and terre-tenants, to make the administrator a party, and that it was questionable whether it was necessary to make the1 heirs and terre-tenants parties to a proceeding by sci. fa. to subject the lands.

We have in this State a statute which provides that if the testator or intestate has entered into any written agreement or contract for the conveyance of real estate, the administrator is to execute such conveyance.

Under section 2, chapter 1473, Laws, passed in 1866, we have a legislative interpretation of the then existing statutes as to the right of possession of the lands of an intestate. It provides that administrators, when in their judgment it is necessary and proper to hire labor for the cultivation of the lands of the estates represented by them, are authorized, with the sanction of the Judge of Probate, to hire and employ Buch laborers and superintendents as shall be necessary for that purpose. Under section 1, chapter 3016, Laws, it is provided that the real estate belonging to an insolvent estate shall, after the suggestion of insolvency, remain in the hands of' the administrator until pro rata distribution of the assets is ordered.

Where the lands cannot be divided fairly among the heirs, the administrator is given the power to have a sale and distribution of the proceeds., Sec. 6, ch. 1732, Laws.

Upon his petition under certain circumstances lands belonging to solvent estates may be sold in lieu of personal property.

It is impossible to reconcile these decisions and statutes with the view that the heir is entitled to the possession of the real estate as against the administrator, during the settlement of the estate. It is true that the administrator has not the absolute property, nor can he be called a tenant for years or for life, with or without expectation of the fee. He has not the fee. He has, however, the right of entry, and the right to the possession and .management of the real estate, in the manner contemplated by law.

We think these statutes give to the administrator the right to take possession, of the real estate of the deceased, while th.e estate is in process of settlement, and that the right of the heir is subordinate to this possession» As a matter of course, the administrator has not an absolute property. He can institute proceedings as authorized, and under them the fee may be passed to .a purchaser. We do not think there can be any doubt that an administrator thus entitled to possession can maintain ejectment. (1 Kelly, 541; 1 Blackf., 117; 7 Mich., 350; 16 Wis., 193 ; 21 Ark., 62; 3 Eng., 48; 24 Ala., 129.)

The Supreme Court of Arkansas, in the case of Menifees, administrators vs. Menifee, et al., (3 Eng., 48,) says: “The statute enacts that land3 and tenements shall be assets in the hands of eveiy executor or administrator for the payment of the debts of the testator or intestate. Now, while it is perfectly manifest that the law of descent and distribution casts the inheritance upon the heir, subject to the payment of debts and the widow’s dower, it is equally clear that the executor or administrator is the legal representative of the whole estate of the deceased, not taken by the widow as dower and for the support of herself and family, for the special -purpose of collecting and preserving it and satisfying the personal obligations of his testator or intestate, all of which the law makes it his duty to perform, if the estate is sufficient therefor, and to distribute the residue if any. And it cannot be doubted, that the whole of the real estate, exclusive of dower, is charged with the debts of the intestate; and therefore, in the absence of other legal authority, we consider it clear, upon well established legal principles, that the principle would cany with it all incidental rights attached to it, of which character we deem the rents and profits; and although the law does not in express terms declare that the administrator shall have the possession of lands, yet if the lands are, as the statute explicitly declares they shall be, unconditionally and unqualifiedly assetB in his hands for the payment of debts, to make them entirely and completely answerable from the death of the intestate, the administrators must, of necessity, have their possession from the heir until debts are satisfied; otherwise, the creditors would lose .the intermediate rents and profits, which we cannot believe it was designed should go to the heir, while the estate out of which they spring is subject to the claims of creditors.”

The act of 1870, chapter 1732, enacts in general language without any proviso that “real estate shall be assets in the hands of an administrator.” The administrator, upon the strength of the intestate’s title, whose legal representative he is, has a right of entry and a right to present possession, if the estate* ’that the intestate had is of such character as to be attended by these incidents. It is not essential in an action of ejectment that the plaintiff should have an absolute fee. (Ala. Rep., 351; 3 Stewart and Porter, 197.)

His right to recover, and the basis of his action, is the title of his intestate. His estate interest and power, however, after such recovery, are limited by the incidents and duties which the law attaches to him, and with which his possession is attended, and a court of law or of equity, as may be appropriate, will, in proper cases, exercise their jurisdiction in order to the due preservation of every interest which an administrator in possession should respect and protect.

Being entitled to the possession and to the control, he is entitled through this remedy to enforce such right.

The cases in 2 and 3 Fla. holding the administrator entitled to the rents and profits after the death of the intestate, virtually settled this question. The Supreme Court of Alabama, in the case of Golding vs. Golding’s Admr, 24 Ala., 129, uses this language: “Being thus entitled to all the rents of the premises, the administrator must of necessity be entitled to all * the needful remedies to enforce his rights; for when the Legislature conferred the right to the rents accruing on the real estate of the intestate on him, it gave him, by implication, eveiy other right or power necessary to render this right effectual. Among these are included the right to the possession of the lands, and the right of action to recover that possession if unlawfully withheld from him.” Our statutes do not restrict the right of the administrator to a sale for the purpose of paying debts. Lands are first declared assets in the hands of an administrator, and he is given every necessary power in connection with the real estate looking to possession and management. If there is a power of sale vested in an ex- • ecutor under a willj and he fails to execute the power, an administrator cwm testamento aimexo has the right to have a sale. If the court deems a sale of the real estate preferable to a sale of the personal property, the right and power to institute the proceeding is in the administrator; and when the lands cannot be equitably divided amongst the heirs, a sale may be had and the funds distributed upon proceedings instituted by the administrator; and finally, when the administrator, in his judgment, thinks it is necessary and proper to hire labor for the cultivation of the lands of the estate represented by him, he is authorized, with the sanction of the Judge of the County Court, so to do. ’The Legislature certainly contemplated in all this something more in an administrator than a simple statutory power to sell'land after exhaustion of personal' assets.

He has the right to the possession for defined purposes. As was remarked by the Supreme Court of Michigan, in the case of Campan vs. Campan and others, 25 Mich., 127: “The right of an administrator under the statute to the possession of the real estate of his intestate, and the rents and profits thereof pending the settlement of the estate, is not an estate or right of property, nor is it an interest which the administrator can dispose of as such.”

In this view the order of the court made in this case .denying a motion to make the heir a party to the suit was correct, independent of any question of amendment under the statute. The administrator has the right to the present possession and control, and the heir is not a necessary party plaintiff here.

Something is said in the briefs as to the form of the declaration and the necessity for other averments than those required by statute. The form prescribed by the statute is sufficient in all actions of ejectment, and upon the filing of the plea of not guilty and issue thereon, the case is ready for trial. No special pleas are admissible, unless it be a plea to the jurisdiction, a plea puis darrein, con~ timumce, or something of that character!

The judgment is reversed and the case remanded for further proceedings.  