56 Fla. 763 | Fla. | 1908
The appellee as complainant below filed his bill in equity against the appellants as defendants below in the Circuit Court of Polk County for the foreclosure of a mortgage executed by Andrew R. Carhart and his wife to the complainant. The defendant The Ybor City Bank and James B. Scully were made defendants for the purpose of foreclosing some alleged subsequently acquired interest in the mortgaged property. The defendant Andrew R. Carhiart answered the bill alleging- that the note and mortgage sought to be foreclosed were without consideration. That they were executed and delivered to the complainant to secure himi in the payment of $500 to be advanced by him and to- be paid to- the Bank of Ybor City to liquidate a debt due from Carhart to the bank, and that said $500 nor any other sum was ever paid by the complainant for him. to said bank and that, therefore, there was no consideration for said note and mortgage. This was the real issue in the case. A voluminous amount of testimony was taken and reported to the court 'and at the final hearing' on the bill, answers and testimony, the court below made a final decree in favor of the complainant for the full amount of his note and mortgage and interest thereon, including the sum of $57.60 for attorneys fees for the foreclosure of the mortgage, said amount being ten per cent of the amount of principal and interest adjudged to be due on the note and mortgage.
From this decree the defendants, below have appealed here, assigning as error the rendition of said decree — - and the feature thereof adjudging- $57.60 for attorneys fee — and in the'court’s refusal to decree that the bank of Ybor City had a first lien upon the property in dispute.
Upon the main issue in the case as to whether the complainant’s note and mortgage were given to him to secure
Prior to the execution of the note and mortgage to the complainant Andrew R. Garhart made a contract of sale of the mortgaged property to the defendant James B. S'cully whereby Scully paid $500 in cash and gave his six several promissory notes for $500 each payable respectively in one, two, three, four, five and six years after date. Carhart executed a deed to the property to Scully and deposited the same in the Polk County National Bank in escrow to be delivered when all of said notes were fully paid with interest; and said agreement of sale further stipulated that in the -event the said Scully should be in default for six months in making any of said payments, then all previous payments made by him should be forfeited and that Carhart might then demand and receive from the Polk County National Bank the deed to Scully deposited with said bank in escrow and should not be liable to said Scully for any sum or sums of money theretofore paid on account thereof. Scully took possession of the property and remained in possession -of it for about a year but made default in the payment of all of his notes given for the deferred payments, paying nothing more than the cash payment of $500 -made at the time of his purchase. Then Scully abandoned the place and his purchase and Andrew R. Carhart the vendor took posses
It is also objected that the court erroneously, without any evidence to sustain its reasonableness, decreed an attorneys fee for foreclosing' the mortgage of $57.60. There is no merit in this contention. The note given to
Finding no error the .decree of the court below in said cause is hereby 'affirmed at the cost of .the appellants.