Bennett v. SennBennett v. Senn
It is alleged in the bill that the maturity of the said note was extended by agreement of complainant until December 30, 1930, and that the mortgagors covenanted and agreed to pay said note. The mortgage, a copy of which was attached to and made a part of the bill, contained the following agreement: “the time of payment of the balance due on the principal of said note is hereby extended to March 12th, 1929” and the mortgagors covenanted and agreed in and by said mortgage, “To pay all and singular the principal and interest and other sums of money payable by virtue of said promissory note and this mortgage deed, or either, promptly on the days respectively the same shall severally become due.” A
The assignment of error directed at the ruling of the Court on the demurrer to the answer of defendants, has not been argued here by the appellants, and will, therefore, be treated as abandoned.
Appellants, in behalf of their contention that the Chancellor was not justified in entering the deficiency decree, argue that the record shows that there had been no consideration to the mortgagors, or any other person, for
“The answer setting up the facts necessary to apprise the Court of the lack of consideration for the covenant and mortgage, and of the invalidity of the mortgage itself for want of consideration, was on file before the Court when he entered his deficiency decree. The complainant had demurred to the answer, which meant that the complainant had admitted the facts in the answer to be true. The Court had sustained the demurrer to this answer, which meant that the Court held that, even admitting the facts stated in the answer to be true, the answer did not constitute a defense. The Court erred in sustaining the demurrer to said answer. But the question now before the Court on our notice of entry of appeal (T. 61), is merely whether the Court erred in entering a deficiency decree. The deficiency decree was entered in the face of the allegations of the answer. True the answer had been demurred out. Nevertheless the only basis for permitting the answer to be demurred
out was to assume the truth of the answer. For all subsequent purposes in the suit the answer must be assumed to be true. In view of the facts made known to the Court by the answer, the Court below erred in entering a deficiency decree against the defendant Rosa Dillon and against the defendant Julia Dillon Bennett, individually.”
The fallacy of this argument is apparent when we are reminded that the demurrer to the answer was sustained. This left the record, insofar as the questions involved here are concerned, in the same shape as it would have been if no answer had been filed. When the demurrer was sustained, the facts alleged in the answer dropped out of the case. The admissions made by the demurrer were only for the purpose of passing upon the sufficiency in law of the answer, and were not binding upon the Court in the consideration of the case on final hearing, or upon application for a deficiency decree (49 C. J. 442. See also, Rawls vs. City of Miami, 82 Fla. 65, 89 So. 351; Walker vs. Close, 98 Fla. 1103, 125 So. 521; 21 R. C. L. 506). They could not be regarded as an acknowledgment, or used as evidence, or considered as equivalent to evidence. 21 R. C. L. 509-10.
In this case, a decree pro confesso was entered against the defendants, and by reason thereof, they are held to have admitted the allegations of fact and the inferences, and conclusions of fact which may be drawn from the allegations contained in the bill of complaint. A. C. L. R. Co. vs. Feagin, 93 Fla. 1015, 113 So. 89.
Since the promise of the defendants, Julia Dillon Bennett and Rosa Dillon, was contained in a covenant of the mortgage, which was made a part of the bill, and the consideration therefor was the granting of an extension of time for the payment of the note, no question can arise here concerning the statute of frauds.
So far as we are advised by the bill, the plaintiff had
Moreover, the mortgage was under seal and therefore, a sufficient consideration is presumed To be available as a defense to the bill, it was necessary to plead and prove a lack of consideration for the mortgage. 1 Wiltsie on Mortgage Foreclosure, 4th ed. 150; 41 C. J. 384, 390. The cause proceeded to a final decree, the validity of which is not questioned by appellant. No error was committed by the Court in entering the deficiency decree. It follows that the decree appealed from should be and is hereby affirmed.
PER CURIAM.—The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered and ordered by the Court that the decree of the Court below be and the same is hereby affirmed.
ELLIS, J., dissents.
ON REHEARING.
PER CURIAM.—A rehearing having been granted in this cause and the Court having further considered the record herein after the filing of additional briefs and after oral argument by counsel for the respective parties and the Court being now fully advised in the premises, it is considered, ordered and decreed by the Court that the Opinion filed in this cause on August 9, 1932, be adhered to and that the decree of the Circuit Court be and the same is hereby affirmed after rehearing and reargument.
BUFORD, C.J., AND WHITFIELD, TERRELL AND DAVIS, J.J., concur.
ELLIS AND BROWN, J.J., dissent.
ELLIS, J. (dissenting).—There was no basis whatsoever for the entry of a deficiency decree against either Julia Dillon Bennett or Rosa Dillon because no consideration whatsoever moved to them for the execution of the mortgage nor to a third person nor was there any detriment to the mortgage. Neither of the defendants were bound on the original indebtedness which afterwards they voluntarily made secure by executing the mortgage on the land.