Vose vs. The Trustees of the Internal Improvement Fund of the State of Florida. resources of the state. If the contracts already made with the holders of existing outstanding bonds are such as to preclude the trustees from exercising this discretion in all its original largeness, there is still sufficient room for difference of opinion as to the extent of their remaining discretion, to divest their acts of the character of contempts of court, until the court shall have explicitly declared what they shall or shall not do. The other contracts referred to do not admit of as much question as the one which we have considered; and we do not think, therefore, that any attachment for contempt should issue for this cause. As to the payments which the trustees have made for expenses and services of agents, salesmen, counsel, etc., their accounts are rendered monthly, according to a former decree, and are always subject to examination and exception, and may be allowed or disallowed by the court. The trustees contend that the expenses are all proper to be made, and there is no charge that they have not been actually made. They present no ground for attachment as for a contempt. The motion for attachment must be overruled. We next come to the motion by the trustees for a rehearing, upon a petition filed by them on the 12th day of January, 1874, during the term at which the decree of December 4, 1873, which they desire to be reheard, was made. It sufficiently appears that the petition was filed in due time, and properly signed by counsel, and that no opportunity has since occurred for arguing the motion for rehearing. It is, therefore, in order to be heard at this time. The defendants insist that the petition itself, proprio vigore, suspended all proceedings on the decree. But this is not the law. Expressly the contrary is laid down in Dan. Ch. Pr., and other books. Daniel says: "It is an established rule that an order for a rehearing, or an appeal, does not stop the proceedings under the decree or order appealed from, without special order of the court." 2 Dan. Ch. Pr., 1547, 3d Am. ed. Hoffman says: "Neither the petition for rehearing, nor the order itself, stops the proceedings under a decree. A special order must be obtained on application." 1 Hoff. Ch. Pr., 565, note. Vose vs. The Trustees of the Internal Improvement Fund of the State of Florida. On the other hand, the complainant insists that the decree was a consent decree, and a rehearing cannot be had thereon. The trustees, as soon as they heard of the decree, repudiated the authority of their attorney (Hon. W. A. Cocke), to enter into such a consent. It is insisted, however, that he, himself, being attorney general of the state, was one of the board of trustees, and occupying that position, had more than the usual authority of an employed attorney. We have great hesitation in acceding to the proposition that an attorney, or that one of several trustees, acting as such, has implied power in any case to consent to a decree which has the effect of taking the trust out of the hands of the trustees, or of placing the execution of it, in whole or in part, in other hands. And in the case of a public trust, like the one in question, the reasons for hesitation are still stronger. After due consideration of the subject, we are of opinion, that no such implied power exists; and therefore, without at present going into the reasons for our conclusion, we adjudge and decide that the decree, in this case, is open for consideration. The grounds alleged for a rehearing are mainly that the trustees are statutory trustees, ex officio, appointed by the law, and clothed with many duties of a public and political character; and that the appointment of other persons to execute said trusts is incompatible with the duties to be performed; and, secondly, that private persons cannot be appointed by the court to make judicial sales of land. In answer to the first of these objections, it may be said that the agents appointed by the court to make sales of land were not invested with the general trusts imposed by the statute on the ex officio trustees; but only with the power to sell lands for the purpose of raising the moneys due to the parties decreed to have claims against the same. If the lands belonging to the internal improvement fund may be at all subjected to the payment of the bonds secured thereby; if they are in truth a trust fund, inter alia, for the payment of those bonds, they are subject to the power of a court of equity to raise therefrom the money due and chargeable thereon. The question then arises, How shall the court effect their sale for the purpose? Can it only require the Vose vs. The Trustees of the Internal Improvement Fund of the State of Florida. trustees to make sales, or may it effect the sales by other agencies? Suppose the trustees refuse to act, is the court without power to authorize a sale by other modes? It seems to us clear, that the court may employ its own accustomed machinery for the purpose of raising the money to satisfy the liens on the fund. And we are of opinion that a court of equity may appoint commissioners, receivers, or special masters or agents, in its discretion, to effect such sales. In our judgment, therefore, the appointment of the agents in question was neither illegal nor erroneous. The difficulty arises from the want of power in the agents to give good conveyances for the lands sold. But the court certainly has power to compel those who hold the legal estate to execute the proper conveyances. The trustees can be ordered to execute the necessary deeds. But as this is not an ordinary case, as great interests are affected, as the position of the trust is peculiar, and connected with the general interests of the state, and as the trustees are public functionaries, presumably interested with the duties imposed upon them for public and politic reasons, we do not feel disposed to adopt such a course as might be admissible in an ordinary case of private trust. Upon consideration of the matter, we have come to the conclusion that whenever the agents for making sales shall have effected a sale, for which the trustees shall refuse to execute proper conveyances, they shall report the same to the court, and if the same shall be approved by the court after the trustees have had due opportunity to be heard, an order to the effect shall be made; and the trustees will be directed to execute the proper deeds. The case is a difficult one at best. It would be an absurdity to attempt to make a forced sale of such immense territories as might be required, at once, to raise the amount of moneys due, especially at this time of unusual financial depression. We feel bound to use a wise discretion in this matter, and whilst we feel bound to assist the bondholders in every practicable way to realize their arrears of interest in the shortest feasible time, we cannot entirely overlook the large interests which may be sacrificed by hasty and precipitate action. Greeley, Assignee, vs. Scott and wife. An order will be made in conformity with the views now expressed, namely, that hereafter, in case the said agents for sale shall report any sales by them effected to the trustees, and the latter shall refuse to execute the necessary deeds therefor, the agents shall report the same to the court, which will hear the matters, and if the negotiation be approved, will confirm the sale, and direct conveyances to be made. The complainant's counsel has applied for an order to pay out and distribute the money now accumulated in the receiver's hands. We see no objection to paying those who have registered their coupons according to the previous orders of the court, retaining the share of those whose coupons have not yet been properly verified, or have been rejected by the master, until further order. Ordered accordingly. J. C. GREELEY, Assignee of Joseph W. Scott, vs. JOSEPH W. SCOTT and wife et al.. The constitution of the state of Florida of 1868 reserves to each head of a family free from the claims of creditors, a homestead, without limit as to its value, of 160 acres, when the same is not in an incorporated city or town: Held, 1. That the purpose of this provision was to preserve to the debtor, not only his shelter, but his usual means of employment for the support of his family. 2. In the case of a farmer the exemption embraces his house and farm not exceeding the number of acres limited, together with the improvements thereon. 3. But a farmer's homestead would not embrace tenant houses, a sawmill, gristmill, or fullingmill, though erected on a portion of the tract of which the farm is a part. 4. A mill owner, who has a farm attached to his mill and cultivates it as a secondary business, could hold his residence and mill exempt, but not the farm also. 5. The owner of a sawmill who followed the business of sawing lumber, and whose mill was adjacent to his residence, would be entitled to hold the same as part of his homestead. 6. But he could not retain as a part of his homestead those portions of the 160 acres of land which were not ancillary to his business as a lumber man. VOL. II.-42 Greeley, Assignee, vs. Scott and wife. IN EQUITY. Submitted on motion for injunction. The facts appear in the opinion of the court. Mr. H. Bisbee Jr., for complainant. Messrs. J. J. Finley and E. M. L'Engle, for defendants. BRADLEY, Circuit Justice. The assignee in this case filed the bill to prevent the debtor and his wife from setting up the right of homestead to a certain tract of land in the neighborhood of Jacksonville, which they claim as such. The whole tract consists of about forty acres in an unincorporated suburb called East Jacksonville, much of which has been laid out into building lots, and on which the bankrupt resides, and has a steam sawmill, which he has operated for many years as his principal business. The constitution of Florida, adopted in 1868, reserves to every head of a family residing in the state, his homestead and $1,000 worth of personal property, free from the claims of creditors. If not in an incorporated city or town, it may be a homestead to the extent of 160 acres of land; if in such city or town, half an acre, without any limit as to value in either case. The reservation, however, is only that of the homestead, and embraces no more, although the party may own more within the prescribed limit of quantity. It is very material, therefore, to know what is meant by and embraced in a homestead. Within the meaning of the constitution of Florida, however it may be elsewhere, it certainly embraces more than a house for a shelter; for it may extend to 160 acres of land, which could never be needed for that purpose alone. As 160 acres of land is the usual quantity for a farm in this country, the policy of the constitution seems to be to allow a man such quantity of land with his house, as he is accustomed to use therewith in the pursuit of his occupation. In other words, the object seems to be, not only to preserve to the unfortunate debtor his house for shelter, but his usual means of employment by which to carn his livelihood and support his family. The state as well as the individual himseif is interested in his labor and industry, and therefore takes care that he shall not be deprived of the power to employ them. In the case of a farmer, therefore, it is clear that the exemp |