
Per Curiam.
Mr. Justice Carter, being disqualified, took no part in the decision of this cause, but by consent in *520writing filed in the cause it was agreed that it should be disposed of by the two remaining justices, who referred the cause to the commissioners, Messrs. Hocker and Maxwell, for consideration, who report the same recommending reversal, for the reasons hereinafter stated.
In February, 1892, appellees filed a bill against Andrew Scott, sheriff of Jackson county and ex-officio administrator of the estate of W. G. Holloway, deceased, Mary Holloway, and R. H. Walker, T. M. Espey and B. G. Farmer, partners under the firm name of Walker, Espey & Farme,r, for the purpose of foreclosing a mortgage executed by W. G. Holloway and wife in his lifetime to appellees, Jenkins and Davis. The mortgage was given to secure the payment of a certain obligation in writing and the amounts therein named, and also all other sums of money or other articles advanced to said W. G. Holloway by Jenkins and Davis before the first day of October, 1891.
The property described in the mortgage is certain -real estate situated in Jackson county, Florida, and the crops of every kind grown by W. G. Plolloway or in which he had an interest in the year 1891, and four head of horses and mules. It also included a stipulation that W. G. Holloway would deliver to the mortgagees all notes, mortgages and other indebtedness which should be taken by Holloway in his mercantile business before the maturity of the obligation secured by the mortgage.
It also alleged that in addition to the amounts mentioned in the written obligation, complainants advanced to Plolloway prior to October 1st, 1891, the sum of $4,895.49, and subsequent to that date they advanced to him the sum of $4,873.71, and that he had paid the sum of $2,656, which was credited on the mortgage indebtedness, leaving due thereon with interest to December 14th, 1891, the sum of $3,891.32 and that between October 1st and December 6th, 1891, Holloway paid in money and cotton and other produce the sum of $4,384.64 which amount was credited upon the advances made after October 1st, 1891, leaving a balance *521due upon open account of $489.07. The bill makes certain allegations in reference to the payments made and their application.
‘It is also alleged, among other things, that Holloway just prior to his death made a pretended sale and transfer of all his notes, accounts and claims due to him, including those agreed to be turned oyer to complainants, to defendants Walker, Espey & Farmer, and also pretended to sell to them, the said horses and mules which went into their possession.
It is also alleged that on the eleventh day of December, 1891, W. G. Holloway was insolvent, and intending and contriving to defraud complainants and his other creditors, conveyed by certain deeds and bills of sale to Mary Holloway all the lands he owned, including those embraced in the mortgage, in consideration of certain pretended indebtedness from him to her, and also conveyed to his stepson, the son of Mary Holloway, and to his brother, his stock of merchandise of the value of $2,500 in consideration of certain pretended indebtedness to them. All of the defendants appeared and filed a demurrer on the ground that the bill did not state a case entitling complainants to the relief prayed. This demurrer was overruled September 7th, 1892.
Subsequently defendants Scott, Walker, Espey and Farmer filed an answer in which they set up the fact by way of plea that Mary Holloway had died on the eighth day of October, 1892. The answer denied the allegations of fraud in the bill and set up certain alleged defenses in reference to payments on the mortgage indebtedness and the application of payments alleged in the bill. Counsel for complainants suggested the death of Mary Holloway and the appointment of J. A. Finlayson as her administrator, and moved the court to make him a party defendant in the place and stead of Mary Holloway deceased. The- court ordered, in January, 1893, that the cause be revived against J. A. Finlayson as administrator of Mary Holloway, deceased, and that he be made a party defendant with leave to answer *522the bill. This defendant filed an answer in part adopting the answer of his co-defendants, and in addition admitted that W. G. Holloway in his lifetime executed on the eleventh day of December, 1891, a deed of conveyance to Mary Holloway of the property alleged in the bill. It is denied that said deed was contrived or intended to defraud the creditors of W. G. Holloway, but was bona fide for the consideration of $3,600 due from Holloway to said Mary. After replications filed and proofs taken the court entered a decree in effect that there was due to the complainants upon the mortgage indebtedness the sum of $5,029.51 for principal and interest, including $457.22 adjudged for complainants’ attorneys’ fees under the mortgage; that the said mortgage was valid and unpaid to,the extent named, and that the complainants do have and recover from the defendant Andrew Scott as sheriff and ex-officio administrator of the estate of ,Wm. G. Holloway, deceased, the aforesaid sum of $5,029.51 together with all costs, and that said defendant do pay the same to complainants within five days, and in default thereof that the said defendants and eaqh of them, and all persons claiming by, through or under the said Mary Holloway and William G. Holloway, deceased be debarred and foreclosed of all right and-equity of redemption in the mortgaged real estate (describing it), and that the two horses and a mule in the possession of the defendant Robert H. Walker be delivered by him within thirty days to John Milton, who was appointed special master to enforce said decree, and in default thereof that he, the said Walker, should pay to said master in lieu of said property seventy-five dollars for the gray horse, fifty dollars for the stallion horse and thirty dollars for the mule colt in money, and that the said master should sell all of said property including the lands at public auction after the legal publication, and that the proceeds thereof be paid first to the discharge of the costs and fees of the special master, and then to the complainants or their solicitor in full satisfaction of said decree, and that said master report said salé to the court for confirmation before execut*523ing conveyances to the purchasers, and that after confirma1 tion of said sales that he do put the purchasers in possession of the property conveyed to them respectively. The decree-reserved certain other questions'for future disposition after the sale of the properties ordered to be sold.
At the threshold of the investigation we are confronted with the question of an absence of necessary parties to the proceeding. The bill alleges and the answers of the defendants admit that the lands embraced in the mortgage were conveyed by deed to Mary Holloway by William G. Holloway in his lifetime, but subsequently to the execution and record of the mortgage. The answer also alleges that Mary Holloway died on or about the eigth day of October, 1892, subsequently to the date that our Revised Statutes went into effect. The foreclosure suit was revived on January 20th, 1893, as to Mary Holloway'by making Finlayson, sheriff and ex-officio administrator of her estate, alone a party defendant in her stead. The' record discloses that she left, at least, one son as her heir at law, but the suit has not been revived against her heir or johnvargas@example.org. Prior to the adoption of the Revised Statutes, when our statute law made real estate unconditionally assets in the hands of an executor or administrator, it was permissible to foreclose a mortgage against the administrator alone of a deceased mortgagor (Merritt v. Daffin, 24 Fla. 320, 4 South. Rep. 806), but section 1917 of the Revised Statutes changes this rule, since it provides that real estate óf a decedent shall descend to the heir or devisee of such decedent, and remain in his possession until the executor or administrator shall take possession of or sell the same, under the order of the court, for the payment of debts, etc. In the case of Berlack v. Halle, 22 Fla. 236, it was held that “the owner of the legal title of land covered by mortgage is a necessary party to a suit to foreclose the mortgage, and neither such owner nor the legal title is affected by a deed and sale in a suit to which he is not a party.” Mary Holloway was shown by the pleadings to be the holder of the legal title to the mortgaged *524lands, and upon her death such lands descended to her heirs at law, such heirs at law, as holders of the legal title to such lands, have never been brought before the court as parties to this foreclosure proceeding. The Circuit Court had no* authority under these circumstances to decree a foreclosure of the mortgage as against such lands, in the absence from the suit, as parties thereto, of the heirs at law of Mary Holloway, deceased, to whom the legal title to such lands descended at her death. Neither could there be a proper revivor of such foreclosure suit against the administrator alone of Mary Holloway, deceased, but the revivor to have been effectual should have been against her johnvargas@example.org. Finlayson, Admr., v. Love, decided at the present term. Neither can this court with propriety pass upon the rights of such necessary parties in their absence. The result is that the decree of the Circuit Court in said cause must be reversed, and this conclusion renders it unnecessary, if not improper, for us to notice any of the other questions involved in the case.
The decree of the Circuit Court in said cause is hereby reversed at the cost of the appellees.
