RUTLEDGE GOULD ET AL., HEIRS OF JAMES M. GOULD, DECEASED, FOR THE USE OF GEORGE B. VANDERPOOL, ADMINISTRATOR OF JACOB VANDERPOOL, DECEASED, APPELLANTS,

v.

JOHN T. CARR AND HENRY M. EMMERLY, EXECUTORS OF DELPHI EMMERLY, DECEASED, ET AL., APPELLEES

Mabry, J.,

(after stating the facts:)

It appears from the admitted facts and the testimony in this case that James M. Gould, as sole heir of Elias Gould, deceased, was rightful owner and in possession of the lot of land in question ou the 21st day of December, 1863, and that the lot was sold in that month under the direct tax laws of the United States to James W. Allen, who received a certificate of purchase from the tax commissioners, and. in January, 1864, conveyed, the lot to Edmund Hill. Hill immediately took possession of the lot under his purchase from Allen and remained in possession until the 80th day of October, 1871, when he was dispossessed by the sheriff of St., Johns county by virtue of a writ of possession based upon a judgment in ejectment for the possession of said lot, rendered on the 25th day of that month in favor of Jacob Yanderpool, and against Hill. Yanderpool’s action of ejectment was based upon a deed of conveyance of the lot to him from James M. Could, bearing date March 13th, 1870, but it is conceded that at the time of Could’s conveyance to Yanderpool, Hill was in the actual adverse and hostile possession of the lot. After Yanderpool had been put into possession, which, it appears was five days after the rendition of the judgment, Hill presented an appeal to this court and succeeded in having the judgment reversed and a new trial awarded. Hill vs. Vanderpool, 15 Fla., 128. After the reversal of the judgment Hill was restored to the possession of the lot on the-9th day of June, 1875, by virtue of a writ of restitution issued by the Circuit Judge to the sheriff, and Hill and those claiming under him and his title have been in possession ever since.

On September 22nd, 1875, Jacob Yanderpool entered a nonsuit in his ejectment action against Hill,, and on the 3rd day of January, 1876, suit of ejectment was commenced for the possession of the lot in the name of James M. Could for the use of Jacob Yanderpool, against Henry and Wiley Jenkins, and out of this suit has grown the proceedings now before us. Pleas were filed for Henry and Wiley Jenkins in March, 1876. James M. Could died on the 4th day of February, 1878. Jacob Yanderpool died some time-between 1876 and April, 1888, and the proceedings to* revive the suit in the names of the heirs at law of Gould and the administrator of Yanderpool, as shown by the statement herewith filed, were had in February 1889.

Hill conveyed the lot in 1881 to Delphi, Ms only child, who first married Thomas, and after his death, H. M. Emmerly, and she died in February, 1886, leaving a will in which John T. Carr and H. M. Emmerly are named executors. Hill died between 1881 and 1885, and during the lifetime of his daughter Delphi.

The tax sale to Allen in 1868, under the direct tax proceedings, was void. If it can not be affirmed on the testimony before us that a tender of the taxes assessed on the lot of land and for which it was sold, had been made before sale, it is clearly shown, we think, that the tax commissioners, or a majority of them, before the sale was made, established a uniform rule that they would receive the taxes assessed on property in the city of St. Augustine from no one but the owner in person, and that where such owner was in the Confederate lines he was required to appear in person and pay his own taxes. Under the decision of United States vs. Lee, 106 U. S., 196, and authorities there cited, the tax sale in question was void. This point is not much insisted on by counsel for appellees, but the main reliance for an affirmance of the judgment is placed upon an adverse possession of the lot by Hill and those claiming under him for the statutory period to bar the suit.

The principal contentions for appellee are, first, that Hill’s possession was not interrupted in consequence of his dispossession from October, 1871, to June, 1875, -'by virtue of the writ issued on the Jacob Vanderpool judgment subsequently reversed ; and, second, should í this not be-correct, the proceedings in the names of v the heirs of James M. Gould, deceased, can not be ; regarded as a revivor of the suit commenced by said other on the 21st day of March, 1873, and the judg-. - ment was reversed in this court at the January Term,!..

1875. The presumption is that the appeal under the • first notice was abandoned, and prosecuted under the » second. No supersedeas was obtained, and no effort-made to avoid or resist the writ of possession issued to • put Vahderpool in possession, yet there were legal, remedies provided to prevent such a result. So far as -, we know Hill took no steps to avoid the serious conse-. quence to him of leaving possession, except of prose- - cuting the appeal, and we think he should have been prompt to use all legal means to retain the possession-of the premises.

Furthermore it will be observed that... the statute requires that the premises shall be held adversely to the legal title, and if we were to hold that as between Yanderpool and Hill, the latter must be regarded as continuing in possession from October, 1871, in analogy to the doctrine already referred to of not allowing a party to take advantage of a wrong done by himself, still the legal title to the lot, so far as concerned Hill, was in Gould. The view expressed in the West Yirginia case referred to is that the adverse claimant must so continue in possession during the statutory period that the owner may sue him for the recovery of the land. The consequences to the owner would be serious if an occupant who had been ousted by a stranger, but afterwards restored to possession, could claim the bar of the statute, when as a matter of fact he was not in possession and could not be sued. The statute can not admit of such a construction. It may be said that while Gould’s deed to Yanderpool was void as to Hill, and as between Gould and Hill the title was in the former, still it was held beneficially for Yanderpool. If Hill had remained in possession the opportunity of Gould to sue existed, notwithstanding Yanderpool’s suit, and by relinquishing possession this opportunity was taken away. Yanderpool may have discovered his mistake in suing, and have urged a suit on the part of Gould if Hill had remained in possession.

The next objection is that the suit could not be revived in the name of the heirs of James M. Gould. Suit was commenced by Gould in January, 1876, against Henry and Wiley Jenkins, and about two years after pleas filed the plaintiff died. In February, 1889, notice was given of an application to revive the .suit in the names of the heirs of Gould, and an order was made by the Circuit Judge reviving the suit in their names as plaintiffs. No objection was made to such proceedings, but by consent the executors of, Delphi Emmerly appeared, and the case was tried upon the issues presented by the pleas of not guilty filed by Henry and Wiley Jenkins and said executors. As no objection was made in the trial court to the proceedings to revive the suit in the names of Gould’s heirs, so long a time after his death, we can not review such action of the court, provided such revivor could be made. On the record presented the only question is whether the suit could legally be so revived. Our conclusion is that it could. At common law the death of a sole plaintiff in real actions before judgment abated the suit. Green vs. Watkins, 6 Wheaton, 260; Macker’s Heirs vs. Thomas, 7 Wheaton, 530; Cutts vs. Haskins, 11 Mass., 56; 2 Tidd’s Practice, m. p., 1117; 1 Comyns’ Digest, 120 (H 32).

Upon the death of the ancestor the legal title under the common law rule descends to the heir at law, and thereupon a new cause of action .arises in his favor to recover real estate withheld from him. If the suit of an ancestor can be revived upon his death in the name of the heir, it must be done under legislative authority. The provision in the act of February, 1861, Section 74, page 829 McClellan’s Digest, that “in case of the death of a sole plaintiff, the legal representative of such plaintiff may, by leave of the court or a judge, enter a suggestion of the death, and that he is such legal representative, the action shall thereupon proceed, ’ ’ may contemplate a revivor in the name of an executor or administrator alone as contended for by counsel (Price vs. Strange, Mad. & Gel., 159), and the 35th rule of practice for Circuit Courts, framed under the statute mentioned, seems to add force to such contention. If this be true it does mot follow that the revivor in the names of the heirs at law of Gould was not properly made. The, act of November 23, 1828, while it declares what actions shall die with the person, and what shall survive, provides-that those that do survive may be maintained in the names of the representatives of the deceased.

Section 77, p. 830 McClellan’s Digest. The action here is. one that does not die with the plaintiff.

Rule 94 provides that “in all cases where the rules as to making, parties in other actions can not be made applicable to actions in ejectment, and there is no rule in ejectment, or statute controlling the . subject, then the persons, may be made parties upon motion and notice, in such, manner and upon such terms as the judge may direct.” The 95th rule reads as follows: “If in any case there should be a person in interest or possession, other than the executor or administrator of the deceased plaintiff or defendant, who should be made a party plaintiff or defendant to the suit, he may be made a. party, after such notice and such manner, and upon such terms as to pleading as the court or judge may direct. Such order may be made in vacation as well as in term.” These rules were made by the court under the statute specially for actions of ejectment, which are real actions, and as such actions do not die with the plaintiff, but may be maintained in the name-of the representative, and as the heir is the .real representative of the ancestor, it is contemplated by the-rule that such heir, being a person-in interest, may be-made a party and maintain the suit. The action to be maintained, as contemplated by the rule, is the one-; commenced by or against the deceased plaintiff or defendant. This being the case, it will.be seen that the-action before us was commenced about six months, after Hill was restored to the possession of the land, in 1875, the date when his adverse possession began. after its former interruption. He can not tack his last adverse possession to his former holding, and this-left him without the requisite statutory bar. The fact that the heir may not be entitled to recover mesneprofits for the time the land was held in the lifetime of the ancestor, if such be the case, is no reason why the land itself may not be recovered. The suit was-commenced against Henry and Wiley Jenkins in January A. D.

1876. Pending the suit against them, who were in possession under Hill, the latter conveyed the lot in 1881 to his daughter, whose executors voluntarily appeared and defended the suit in 1889. The commencement of the suit under such circumstances must-of course date from the time of the institution of the-action against Henry and Wiley Jenkins.

For the reasons given the judgment must be reversed and a new trial awarded, and it will be so ordered.