22 Fla. 177 | Fla. | 1886
delivered the opinion of the court:
This case comes before us on an appeal from an order made by a Circuit Judge, sitting in chancery, overruling exceptions to an answer. The ground of the exceptions is impertinence.
If matter not material, as a defence or which is irrelevant to the case made by the bill, is stated in an answer it will be struck out, on exception being taken thereto, as impertinent. Sommers vs. Torrey, 5 Paige, 54. Chancellor Kent, in Hood vs. Inman, 4 J. C. R., 437, held upon exceptions to an answer, that pleadings should consist of averments or allegations of facts, stated with as much brevity and precision as possible; not of inference or argument; and that impertinence in pleadings consists in setting forth what
It is a well established rule, however, that allegations will not be struck out as impertinent unless it clearly appears that the matter is wholly immaterial or irrelevant. If matter is erroneously struck out as impertinent the error is irremediable; whereas, on the other hand, if it is not struck out the court may do justice between the parties in the imposition of costs. Story’s Eq. Pldgs., §267. As to the first exception in Hood vs. Inman it was remarked by the chancellor that the objections to unnecessary folia may be taken on the taxation of costs. “ The court,” says the vice-chancellor, in Davis vs. Cripps, 2 Y. & C., 443, “ in cases of impertinence ought, before expunging the matter-
These principles are the test by which the complainant’s exceptions are to be tried. The parts of the answer to which the exceptions respectively apply are enclosed in brackets in the statement of the case.
The theory upon which counsel for complainant founds his first exception to the paragraphs covered thereby, is that the statute of non-claim does not apply to a claim secured by mortgage, in so far as the enforcement of the claim against the property mortgaged is concerned. It is
It is settled that lands of an intestate or testator are in this State assets in hands of an administrator or executor, and that a mortgage upon real estate is not a conveyance of the legal title, but only a specific lien upon the property. The title is divested only by a sale under a decree of a competent court, and the mortgagor as against an ordinary mortgagee holds the legal title and possession subject, however, to the mortgage lien until such sale is consummated. Sanchez vs. Hart, 17 Fla., 507 ; Willard vs. Whitlock, 18 Fla., 156 ; McMahon vs. Russell, 17 Fla., 698.
Upon the death of Adams, the testator, the possession of real estate, which is the subject of this controversy, passed as assets to his executrix, if it had not been previously conveyed or disposed of by him. Of course the conveyance of an undivided half of the land mentioned in the paragraph covered by the second exception is not to be considered now. In, the hands of such executrix, or any succeeding representative, the land was subject to the mortgage lien, and such executrix or representative pending the administration was an indispensable party to any proceeding to enforce the claim or foreclose the mortgage. Affcera careful consideration of the authorities which we have been able to find bearing upon the subject, the conclusion we reach is that when by, law lands are assets,of an estate, and the, mortgager dies without having disposed of the-parcel mortgaged, and. it is a part of his estate, the statute of non-claim, as usually framed, is as applicable in its requirements to the preservation of the lien of the mortgage-against the parcelrof land as it is to the preservation of Ifhe claim against the geperal assets in case the mortgage security should prove inadequate.. The,, «« which might upon
The purpose of the statute of non-claim is to require a presentation within the period it prescribes of all claims against the estate of the decedent, in order that the representative may? know what they are, provide promptly for their payment, and turn over the balance of the estate to the heirs and distributees or devisees and legatees, discharged from and quieted as to all claims not so presented accruing in the decedent’s life-time. A failure to present within the statutory period a claim accruing against the decedent in his lifetime does not merely postpone its payment to those claims presented, but it virtually destroys it and operates pro tanto to the advantage of the beneficiaries of the estate. Amos vs. Campbell, 9 Fla., 187. The statute applies to all “ debts and demands of whatever nature against the estate of any testator or intestate,” and the notice is to all “ creditors,” &c. The fact that a particular portion of the land of the decedent’s estate
It is further contended in support of the first exception that the pendency of the suit of foreclosure against the testator, John S. Adams, in his life, and the subsequent revivor under the 38th Equity Rule is a sufficient compliance with or answer to the statute of non-claim. Looking at the parts of the answer excepted to we find their substance to be that no revivor proceedings against Ellen F. Adams, his executrix, were had in her life-time; that the claim was never presented to her; that she died June 6, 1878, and the claim was never presented to Driggs, administrator cum testamento, and that he had no knowledge of it or of the suit against
The argument by counsel of the point now under consideration, as well as the one as to a mortgage claim not being within the statute of non-claim, has not excluded, but has assumed a publication; and the applicability of the statute as a defence cannot properly be argued unless a
The mere pendency of a suit at the testator or intestate’s death, has nowhere, so far as our investigation has disclosed, been held to be a presentation of a claim under the statute of non-claim. In Fillyau vs. Laverty, supra, Judge Hawkins, speaking for the court, said that mere
In the case before us there has been no diligence, but an entire want of it; not even an effort or an intention to revive the suit during seven years and a half is shown ; more perfect, if not persistent, passiveness could hardly be shown. If there was anything to bring it within the principle of the case of Ellison vs. Allen, we should feel it to be our
The substance of the paragraph covered by the second exception is that within a year before July 23, 1884, the date of the issue of the subpoena to Driggs, administrator, one E. H. Mason, desiring to negotiate a loan upon “ his said undivided interest in said land,” discovered on the re
Just preceding the above paragraph is one in 'which it is alleged that on August 6, 1875, the testator sold and conveyed to said Mason, and to one Ritchie, by two deeds, each with full covenants of warranty, an undivided half interest in the lands, and subsequently Ritchie’s interest was conveyed to Mason’s wife, and thus Mason and wife are now seised and possessed, and are now in the actual possession of the undivided one-half interest.
It is evident from what we have said in discussing the former exceptions that these two paragraphs cannot be separated. The one excluded from the exception shows that Mason’s title to part of the land is direct from the testator, under full covenants of warranty, and Mrs. Mason’s is from the testator through Ritchie.
A vendee remaining in possession under his purchase cannot set up an outstanding title in a third person which he may have purchased. Greeno vs. Munsen, 9 Vert., 37 ; Larken vs. Bank of Montgomery, 9 Porter, 434. Nor if he buys in an outstanding incumbrance will he be permitted to set up an adverse title under it against his vendor, but the purchase enures to the benefit of the vendor’s title, and the vendee can only abate the unpaid purchase money, or,
The real party in interest in the prosecution of this suit, so far as the disposition of this exception is concerned, is Mason. He holds, according to the allegations of the answer which for the purposes of the exception are to be taken as true, an undivided interest in the land under full covenants of title from the testator, and is in possession ; and hence, as against this interest in the land, he cannot enforce the mortgage, but his claim is against Adam’s estate for reimbursement. To the extent then of preventing a decree of sale, and a consequent sale of this undivided interest, without saying anything as to Mrs. Mason’s interest, we think the allegations covered by the exception taken in connection with those of the immediately preceding paragraph :are not impertinent.
Whether or not there has been in fact, or is in law, upon the face of the allegations excepted to, considered either alone or in connection with the preceding paragraph, any extinguishment or merger of the lien of the mortgage, so
These can be disposed of by the chancellor at the proper time.
From what we have said it is plain that the exceptions should have been overruled, on account of covering only a part of material allegations as to the same matter, if considered as they are really framed ; and if considered as extending to all the allegations concerning the same subject matter or defences, and from which the argument has not been excluded, they should have been overruled for other reasons indicated above.
Where an exception is to an allegation which is both prolix and immaterial it will be sustained.
The order appealed from will consequently be affirmed, and it is so ordered.