H. A. MOORE, APPELLANT,

v.

MARY A. CLEM, AMANDA C. ROHR, MARY J. SEWELL AND O. MINTA BROWN, APPELLEES

On November 6th] 1899, complainant filed a praecipe for a decree pro confesso, which was then and there entered.

On November 16th, 1899, the special examiner reported that he had carefully examined and compared the allegations of the bill of complaint with the minutes of the county commissioners, the assessor’s books, report of tax sales, and deed records, and finds all the allegations to be true and correct.

On November 21, 1899, the court, without notice to respondent, signed a final decree finding the equities for the complainants, grants the prayer of the bill, and declares the tax deeds to be clouds on the title of complainants to the lands (describing them), and directs the clerk to cancel them, enjoins the respondent from claiming title, and orders him to pay the costs. An appeal was taken from this decree to this court.

Appellant assigns the following errors: 1st, the court erred in granting the motion to strike the plea oí defendant; 2nd, the court erred in sustaining. the exceptions to the answer of defendant; 3rd, the court erred in granting the motion to strike the amended answer of defendant; 4th, the court erred in granting the decree pro confcsso herein; 5th, the court erred in appointing a special xeaminer herein without notice to the defendant; (ith, the court erred in entering a final decree herein.

Hooker, J...

(after stating the facts.)

Lt does not appear that the plea was properly verified, inasmuch as it was not supported by the affidavit of the defendant, and there was no allegation therein that he was absent from the State, so as to authorize the oath to be made by his attorney. Rule 48 of Rules of Circuit Court in Suits in Equity.

The first assignment of error is not sustained.

A defendant, under rule 57 of the Rules of the Circuit Court in suits in equity, is “entitled in all cases by answer to insist upon all matters of defense (not being matters of abatement or to the character of the parties, or matters of form) in bar of, or to the merits of the bill, of which he may be entitled to avail himself by a plea'in bar, and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar and an ánswer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar or defense.”

In the ease, at bar the answer denied that D. R. Clem, under whom the complainants claim the lands, died seized of the land in dispute, and averres and offers to prove that the land, before his death, was sold under a judgment and executed against him. and was never restored to him, though he brought suit to set aside the judgment and sale, which suit was decided against him. If these facts were true it was a. complete bar to the suit of complainints; for if the title and interests of their ancestor had been diyested by a sale under a judgment, they were not the owners of the legal title to the property, and had no right to sue the defendant, however defective may have been his tax titles. The so-called exceptions were for insufficiency. Exceptions for insufficiency do not lie to an answer setting up a defense in bar of the suit, but only where the answer does not sufficiently respond to the allegations, charges and interrogatories of the bill. Bush v. Adams, 22 Fla. 177. Robertson v. Dunne, 45 Fla. 33, South. Rep. 530; 1 Barb. Ch. Pr. (3rd ed.) 176; 1 Ency. Pl. & Pr. 898. The law. of exceptions to answers, for insuf ficiency, or for impertinence or scandal, is very clearly stated in 1 Barb. Ch. Pr. 176, supra, and the forms for framing such exceptions are also given in 3 Barb. Chan. Pr. pp. 422-428; 1 Bates on Fed. Eq. Pro. Secs. 352 et seq 1 Beach Mod. Eq. Pr. Secs. 406 to 420 inclusive; 1 Daniell Ch. Pr. (6th ed.) 349, 752; 3 Daniell Ch. Pr. (6th ed.) 2124.

The amended answer was, on motion, stricken by the court. It stated the defense of the defendant with a little more fullness possibly than the. original answer, and should not have been stricken. We think the second and third assignments of error are well taken, and it necessarily follows that the remaining assignments are also Avell taken.

It is, therefore, ordered, adjudged and decreed that the final decree appealed from be and same is hereby reversed at the cost of appellees, and that the cause be remanded for further proceedings in accordance with law. The solicitors of the appellees in this court did not represent them in the court below.