Raney, C. J.:
The sufficiency of the bill was not questioned in the -Circuit Court, but the bill was answered, and upon replication.being filed, testimony was taken by an examiner, and then there was a trial by referee, a decree in favor of complainant being reached without any objection being made to chancery as the forum; nor is the sufficiency of the bill, standing alone, brought in issue here; on the contrary, it is charged to have been so framed for the purpose of precluding any such controversy. The contention, however, of counsel for •appellant is that the facts presented by the answer and developed by the testimony show such a case as is exclusively for the adjudication of the title by a court of law, and ousts the jurisdiction of equity. The defense made by the answer is, in short, a denial that complainant has any interest in the property or any cotenancy therein with the defendant; and a title to the entire property acquired by defendant at a sale made in March, 1873, under an order of the county court of Duval county, applied for by an administrator de bonis non oum testamento annexo on the ancestor’s estate, for the payment of debts of the estate, and .an entry into possession under such title, and a retention pf possession, from then until the commencement of the suit, adversely, to the complainant and all persons; it being further alleged that the price bid and paid by them for the property was its fair value, and that the complainant received his share of the money [560] remaining over and above the amount necessary to pay the debts of the estate.
Our statute (Sections 2, 5, pp. 801-3 McClellan’s. Digest) provides (Section 2) that the bill or petition may be filed by any one or more of several joint tenants, tenants in common, or coparceners against their cotenants, coparceners or others interested in any lands to be divided, and shall set forth the description of the lands, of which partition is prayed, by metes and bounds, or other sufficient description, and shall state according to the best of the knowledge and belief of the petitioners, the names and places of resi-. dence of the several owners, joint tenants, tenants in common or coparceners, or others interested in the land, the quantity or proportionate share claimed by each, and such other matters, if any, as may be necessary to enable the court to adjudicate fully upon the rights and interests of the parties; and where the names, residence, quantity or interest or proportionate share of any of the owners or claimants of such land are unknown to the petitioners or complainants, then it shall be so stated and the suit may proceed as if such unknown persons or defendants were named in the bill or petition, and such bill or petition shall be sworn to by some one or more of the petitioners. And (Section 5) upon the bill being taken as confessed, or upon the coming in of the answers of the defendants the court shall proceed to ascertain and adjudicate the-rights and interests of the parties either by a reference to a master, by a hearing upon the pleadings and proofs, or in such other way or manner as may be-most convenient and according ■ to the ordinary rules and practice of the court; and shall also decree that partition be made if it shall appear that the parties are entitled to the same; provided, however, that when [561] the rights and interests or proportions of the petitioners are clearly established to the satisfaction of the-court, or are undisputed, and also when the rights and interests of some of the defendants, but not all of* them, are ascertained or established to the satisfaction of the court or are undisputed, the court may,, by decree, order partition to be made, and the shares, proportions or interests of the complainant or complainants, and such of the defendants as have established! and satisfactorily proved their respective shares, interests or proportions, to be set off and allotted to-them, leaving for future adjustment by further proceedings in the same cause the rights,, shares and interests of the other defendants.
This, statute has received the consideration, of the. court in two cases: Street et al. vs. Benner et al., 20 Fla., 700, and Keil vs. West et al., 21 Fla., 508.
In the former case, decided in 1884, the bill was dismissed by the Circuit Court without stating its- reasons for so doing; and it is said in the opinion—which concludes very properly, that such dismissal was because of the legal title attempted to- be tendered by the plea and answer—that the bare denial of complainant’s title by plea' or answer was no obstacle to the court’s proceeding according to the ordinary practice of courts of equity in partition and did not necessitate-a reference to a court of law to try the legal title;, and then observing that a defendant must answer the bill, and if he sets up a title -'adverse to the complainants or disputes the complainants’ title, he must discover-his own title or show wherein the complainants’ title-is defective, it says that the defendants, Benner, etal.y merely deny complainants’ title and allege adverse possession “founded on a written, instrument, ’ ’ butdcfc. [562] : not disclose the defect in complainants’ title, nor dis- ' cover the written conveyance under which they claim ; adversely to the complainants. It is then observed ' that the general practice in chancery as established by ' the books, uncontrolled by statutes, is that when the •complainant’s title or the cotenancy is denied, or the answer sets up an adverse holding, and the defense is substantiated by proof, to require the plaintiff to es- ■ tablish his title at law and to retain the bill a reason- : able time to enable him to do' so by such an action. ' The court then proceeds to consider the statute, with . reference to the power of the court of chancery to try • ■•and determine a contested legal title in a suit brought “for the sole purpose of effecting a partition of lands.” Disposing of Mattair vs. Payne, 15 Fla., 682, by remarking, inter alia, that there the statute was not referred to, nor its construction required; and further, ' that the bill itself showed the absence of complainants’ right and that the very nature of the proceeding contemplates a division of land among owners in common, it is then said that where the object of a suit is to try a question of legal title the proper forum is a court of law, and where the object is a partition -of lands among common owners or parties severally interested in an undivided estate a court of equity is the forum, and, unless the statute otherwise provides, the practice has generally been as stated above. Then ■ after quoting from the act, it says of its direction to ascertain and adjudicate the rights and interests of the parties, that it is ‘ ‘nothing less than a direction to de- ' cide and decree what these respective rights are as they may appear from the law and the testimony; that •-there is nothing in the act requiring the court of chancery to ascertain what the verdict of a j ury might be upon the facts, but the court must ascertain and de[563] •cide tlie rights and interests of the parties upon the ■evidence before it. * * That the plain meaning of the statute seems to be that all proper issues made in a suit for partition of lands shall be tried and determined by the court in which the proceeding is com menced and according to its rules, and whatever investigation is necessary to enable the court to adjudicate the rights and interests of the parties, may be •conducted by it; that having the power, the court •should exercise it.”
In Kiel vs. West et al., decided in 1885, in discussing the allegation of the bill as to complainants’ seizin in the light of the law governing the question, it was observed: That the court does not say that a bill which shows in compliance with the rule in such cases that a defendant is in possession of the premises claiming them adversely to complainants would not oust the equitable jurisdiction; but, on the contrary, as no such case was presented, it said nothing on the subject. Again, in the same case, reiterating the rule announced above as to the defendants’ answer, it is said: The titles being spread upon the pleadings, if the court could see that there was no valid legal objection to complainants’ title, there was then no reason why the court should not proceed to order partition. When the statement of the title showed a disputed or doubtful legal title, the court could dismiss the bill and •send the complainant to law, or retain the bill till a court of law had settled the title. Following this the construction of the statute in Street et al. vs. Benner et al., as set forth in the head-note thereto, is stated.
The meaning of the former of these decisions is, that whenever the case is properly one of’ partition, one whose bona fide object is the partition of lands among [564] the common owners thereof, then all controversies as to the legal title may be settled by the chancellor under our statute; but that it was not intended by the the statute that, a proceeding under it should be used as a substitute for or equivalent of an action of ejectment, or for the sole purpose of testing a legal title or trying an issue as to it. It is not to be lost sight of that the proceeding under our statute is not one at law. The statute is merely a regulation of the proceeding in chancery, which forum had long possessed concurrent jurisdiction with that of the law courts over the partition of land. The opinion in Street vs. Benner et al. does attempt to mark, further than we have indicated, the line of division between the jurisdictions, or the point at which the chancery court will, at least, arrest its progress and await the result of an action at law to be promptly instituted by the complainant. It is certain, however, that the case there was one whose facts placed it in the class where, according to the classification made by the opinion, the chancellor was to settle all questions as to legal title. The complainants set up title to an undivided interest in the land, a grant from the King of Spain to one Delespine, and showed that they and certain others named were heirs of Timothy Street, and of his son Henry, and as such claimed an undivided half interest in the land, which half interest Street had acquired by deed from one Michael Lazarus to whom Delespine had conveyed the same on a stated day. Delespine had conveyed an undivided tenth to John Drysdale in October, 1824, and 18,454 acres to Enoch Wiswall in December, 1827. The grant had been confirmed by the United States Supreme Court in 1838, and a patent for the land embraced in the grant by survey was issued in October, 1873, to the heirs of Delespine, [565] Lazarus, Wiswall and Drysdale. The defendants derived their interests by conveyance or otherwise from Drysdale and Wiswall,' and by a mortgage of June 14th, 1825, from Delespine to Bancroft & Pope, of New York. The above facts were all shown by the bill. The defective nature of the answer is explained above. There was replication to the answer and to a plea of similar deficiency. The bill was dismissed after there had been an improper reference to the commissioners, and a report by them as to the rights and interests of the several parties, and the conclusion of this court that such dismissal by the Circuit Court was on the ground of the tender by defendants of the issue of a legal title is well supported by evidences in the record which it is unnecessary to mention. The case is •clearly one in which, according to the statement of the bill, there were common owners of the described property, and the object of the complainants was to have the undivided interest or share belonging to the Street heirs assigned to a distinct half of the land, and. that half vested in them, and discharged of any ownership of the other parties. We must admit it to be the law of the case in Street vs. Benner, that in all future proceedings therein the issues of fact as well as of law as to the legal title should be settled by the chancellor; the opinion clearly justifies such an inference by all •concerned in it; but the observation on the same point in Keil vs. West, though not sufficient to overrule the former case, is at least suggestive of some doubt in the mind of the court as to what had been said in the former case, and of a disposition to withhold further expression on the point until circumstances should constrain it. There is nothing in the pleadings that suggests that the relation of common owners had never existed between the complainants and defendants, or [566] that the primary interests of the defendants were such as to make their possession hostile in its incipiency to-that of the complainants. These conclusions are also-sustained by the results of the inquiry made by the commissioners. It is not a case in which the complainants are seeking relief against defendants whose interests have been acquired solely in hostility to complainants’ interests, nor a case where one of a class-of heirs who have been owners of the property is seeking relief by partition against a defendant who has entered into possession of the 'land under a deed purporting to convey to him the entire estate therein, and the circumstances are such that if the deed was ineffectual to convey the sole complainant’s interest, it was equally ineffectual in passing the interest of the others-of the same class.
In the case before us the complainant, claims as heir of his father whose title the defendants assert they bought at the administrator’s sale made on the application of the administrator. Piling a replication as he-did, the plaintiff manifested that he was unwilling to submit the question of title to the chancellor as a mere-matter of law, upon the facts presented by the pleadings, but wished to join issue upon the allegations of fact made1 by the answer. In so far as any issue of' fact is concerned, it can not be overlooked that the right to have the same tried by a jury was waived by the defendants. In Mississippi the obtaining doctrine is that the right to relief by partition implies joint ownership between the complainant and defendant, and can be enforced only between those in actual or constructive possession, and that other claimants must establish their right by action at law (Spight vs. Waldron, 51 Miss., 356), yet in Black vs. Washington, 65 Miss., 60, 3 South. Rep., 140, where the bill sets forth [567] the source of title of the plaintiffs and how • they derived title, and alleged that they were entitled to one-half interest, and that the defendant owned a specified interest; and the defendant answered claiming all the* land by adverse possession, the decision was that the-; object of the bill being in effect an action of ejectment, as the complainant had neither actual or constructive possession of the land, was waived by the* silence of the appellant on the subject in the lower-court. In the case before us we do not have to, mondo we go so far; for here there has not been mere-silence on the question of the trial of the legal title or of any issue of fact which there might be in the record concerning the same, but we find that after the testimony had been taken before an examiner, the cause* was tried by a referee on the application of the parties;, plaintiff and defendant, made to the chancellor by their respective solicitors of record. After such a. reference and trial none of the parties should be heard, as to a denial of an alleged constitutional right to a.trial by j ury. By such reference and trial they waived: any such right, and after having a trial in the mode-preferred by them they should remain silent on the* subject, at least until the decree shall be set aside for for some other cause. Carr vs. Thomas, 18 Fla., 736, 743; Sammis vs. L’Engle, 19 Fla., 800.
This conclusion brings us to the question of parties -. as the next one in proper order. The facts developed by the pleadings and testimony are that the commom source of title, Mr. Charles Summers, died testate leaving surviving him a widow and five children: Charles. H., Mary S., Francis Y., Michael T. and the complain-ant Owen J. The will made the disposition shown by it of his property. We are not informed by the record whether or not he owned the land in question at the:; [568] time of making Ms will. If he did own it then, he ■ died testate as to it; and if he did not, his children took the land as heirs and not as devisees. It is true "the complainant describes himself as an heir, yet the pleading is not so definite as to justify the inference that it was intended to allege such intestacy. The Uill does not explain how he became the owner of as much as two-eighths of the property. As devisee he would have taken one-sixth, and as heir originally one-fifth subject to dower if the widow did not take a child’s part, or if she had taken such a part, to one-sixth. In view of her death, it may, for the purposes of this opinion, be assumed that he was entitled to a .fifth as against the other children. The effect of the 'testimony, as construed by the complainant and the ■•referee, is that one of the daughters, Mary, who married Mr. Ilildebrandt, had, prior to her death, which occurred in 1871 or 1872, relinquished all claim to or •interest in this land; and hence, if this be correct, it would be that he and the other children, Charles, Fran- ■ cis and Michael, each became entitled to one-fourth of "the property. The testimony shows that Charles died before November 27th, 1887, leaving a wife and a son : surviving him. Whether he died testate or intestate is not known. In the absence of any statement to the > contrary it must be assumed that his widow and son : are still living, and the same' assumption is true as to Francis and Michael. The only theory upon which '.complainant’s case, according to the pleadings and ■ testimony, can be sustained is that the sale proceedings were ineffectual to vest the title of the testator in '■•the defendants; or, in other words, that they were void, • and consequently assailable collaterally. They must be void to be assailable in the manner sought here. If woid, they were so not any less as to any other one of [569] 'the several heirs or devisees of the testator than as to the complainant, and in the absence of any statement ■either in the bill or upon the whole record showing how the interests of Charles, Francis and Michael became vested in the defendants, we think there is an entire deficiency of parties. If the sale, including of •course the conveyance, does not cut off their interest by -vesting the title in the defendants, then in the absence of any additional showing of facts barring their rights, they are part owners with the complainant of the property, and should have been made complainants with him or defendants to the bill. With' them as complainants the case would have presented the spectacle of all the heirs seeking to enforce partition among themselves, when the sole defendant was in adverse possession and had been for nearly fourteen years under a title deed purporting to ■convey to Rivas and Koopman all the title of the complainants’ immediate ancestor and devisor; and were they defendants the peculiarity of the case as one of partition among common owners would be no less palpable.
This brings us to the question of the necessity that the devisees of Mr. Koopman should have been made parties defendant on his death. After the testimony had been taken, but before the reference of the cause for trial, it appears that Henry Koopman, one of the defendants, died testate April 20th, 1889, naming the other defendant, Joseph Rivas, his executor, and the cause was revived by an order of June 22nd, 1889, against such executor, to be proceeded in as though the suit had been originally instituted against him; and afterwards the cause proceeded against Rivas in his own right and as executor of Koopman. The order reviving the cause was made on petition supported [570] by a copy of the letters testamentary. From a copy of the will, which was introduced into the record on the application of the complainant in proceedings instituted by the defendant for a rehearing and in which a rehearing was denied, we find that the will, which was executed March 30th, 1877, and admitted to probate, with issue of letters testamentary, on April 24th, 1889, makes the following provision as to the testator’s property: “First, after my funeral expenses and all my just debts shall have been paid, I give and bequeath unto my dear, long and well-tried friend and partner in business, Joseph Rivas, all my personal property and real estate of every kind and nature that I may die possessed of, to be held by him in trust for the benefit of Joseph M. Rivas, Henry Leo Rivas and Alphonso M. Rivas, children of the above named Joseph Rivas and Emma Rivas, his wife, and it is my wish and request that the said Joseph Rivas shall continue the business now being carried on under the name and firm of Rivas & Koopman, having the sole and exclusive use and control of all my interest in said business, both real and personal, until the above named Joseph M. Rivas, Henry Leo Rivas, and Alphonso M. Rivas shall arrive at the age of twenty-one years; then the said Joseph Rivas shall either pay over to each of the said children their proportion of my estate, both real and personal, or shall hold or invest the same for their exclusive benefit until he shall deem it safe and for their interest to pay the same over to them.” Then the will orders and declares, that, in case of the death of said Joseph Rivas before the said children shall become of age, then the executors and administrators of the estate of said Rivas, whether appointed by him or by the court of probate, shall be required to give good and sufficient bonds to-[571] be approved by the judge of probate to an amount of double the amount that may be coming from the estate to each of the children, and the said executor or administrator shall be required to act in the same manner and form as the said Rivas is required to do. Then it appoints said Joseph sole executor. Two of the children, Joseph and Henry, were admitted on the rehearing proceedings, to be of full age.
In our judgment such devisees became, on the death of Mr. Koopman, necessary parties for the purposes of partition. His executor was not a sufficient party for such purpose as the representative of their interests. In view of the fact that the executor was made a party defendant without the will being before the court, we conclude that the chancellor thought the executor to be rendered a sufficient party by the general nature and powers of the office of executor; still in disposing of this question we shall, for the purposes of this case, but -not as a precedent, regard the will as properly before us, notwithstanding any error there may be in such assumption; and we shall pass upon the question of parties with reference to its several provisions. Grenerally or independent of provisions of a will endowing an executor with special interests or powers as to real property devised to others, such an executor was entitled, as the law stood at the time of Mr. Koopman’s death, to the possession and control of such property as assets, and he could maintain ejectment to recover possession of the same (Sanchez vs. Hart, 17 Fla., 507; Eppinger et al. vs. Canepa, 20 Fla., 262), but we do not think such a trustee to be either an owner or representative of the heirs or devisees of a testator for the purpose of a partition. In such a case neither the legal title nor the beneficial interest is in him, and he can not be held .to have au[572] thority to stand for those who have such interests in a proceeding whose purpose is a permanent division of property among the real owners. Under the provisions of the will before us Joseph M., Henry L, and Alphonso M. Rivas became, upon the death of Henry Koopman, the beneficial and, in the eyes of a court of equity, the real owners of the interest of Mr. Koopman in the property sought to be divided. Neither the devise to the executor nor the powers conferred upon him have deprived the devisees of such ownership. Any partition of the land, so far as the interest which the bill imputes to Mr. Koopman is concerned, must be for the benefit of the devisees, and being the beneficial owners they are necessary parties to such a division. Fridenburg v. Wilson, 20 Fla., 359; Perry on Trusts, Sections 328, 873, 881; Whitlock v. Willard, 18 Fla., 156. Neither the pleadings, nor the record, show that the land in question was partnership assets or is held as such by. the appellant; no such case is before us, whatever may be its rule as to parties. Loubat v. Nourse, 5 Fla., 350; Freeman on Cotenancy and Partition, Sections 111, 120, 443.
The decree must be reversed and the cause remanded for proceedings not inconsistent with this opinion. It Will be so ordered.