*1 possession (22 R. 81; Richbourg Rose, C. supra). L. It indicates an intention to transfer lessor somewhat to the a qualified property or temporary fixtures; in the in goes stance such as a pledge bailment, with not but is sufficient for purpose delivery possession that a that property not has been shown. by judg-
The verdict is not supported the evidence. The is, ment therefore, reversed and a new trial awarded. Per Curiam. —The record iii been con- Court, sidered foregoing opinion prepared Chapter 14553, under Acts adopted by the Court opinion, it considered, as it is adjudged by ordered and judgment Court that the of the court be, below should hereby, the same is reversed and new trial a awarded. J.,C. Terrell, and Whitfield, Ellis, Strum, Brown, J., J. and Buford, concur.
Citizens Bank & Trust Company, Banking Corporation, Trustee, Appellant, v. Walton P. Grey, Frances wife, his Clark, Appellees. P. James
En Banc. Opinion filed October *2 H. D. Wentworth, for Appellant; Caraballo, Cosio, <& Appellees. .Graham Commissioner: Mathews, January On Bank & Company, Citizens Trust corporation, trustee, filed its bill in the court below alleged mortgage to foreclose a to have been made Wal- ton P. hereinafter referred assigned complain- to as to Isaac ITanan and ant. Defendants answered the bill and in their answer suggested parties and the bill was defective for want of *3 equity in their for want of said answer demurred the bill improper joinder parties complainant. taking testimony for had set run, After time defendants final and answer. hearing cause down for on bill hearing, complainant At final confessed the demurrer interposed by in their answer and asked leave defendants differing original to file an amended bill from the in that proposed alleged forth amended bill and set that com- plainant seeking mortgage as was to foreclose the said at trustee for certain bondholders. Defendants asked leave incorporated hearing final to withdraw the demurrer their answer.
Final decree follows: was entered as * * *
“This cause coming day on this to be heard upon the complaint, the answer of the defend- *# * ants complainant the motion of the for leave amend its bill and the court having argu- heard the ment of counsel respective for the parties, and- the Walton P. ** * having prayer withdrawn the in said answer for incorporated affirmative relief and the demurrer' therein, leaving only for the answer, court the defenses to the bill set forth in said to-wit:
“1. That the defendants did not' execute nor de- liver the mortgages notes and in said bill of forth complaint.
“2. That the consideration mort- for the notes and gage complaint mentioned in said bill of has failed.
“And it appearing to the court that de- said fenses contained the answer forth are as above set responsive to taking the bill and the for' testi- time mony having expired testimony having and no been properly been set down taken, hearing being on bill and answer and court fully advised in the premises, thereupon it is consideration thereof AND DECREED That'
“ORDERED, ADJUDGED hereby the bill of and the same be is dis- ’’ missed. *4 complainant appealed. From this decree alleged: The bill * * * to-wit, day October,
“That the 1st of on Grey purchased P. from the said Walton one Isaac the Hanan the real estate hereinafter described for Five he to sum of Thousand which Dollars, pay same; the that in of payment, evidence said Grey P. said Walton exe- the promissory note, their dated cuted whereby year on or from wherein and before one date they pay the the promised to to order of said Isaac Dollars;” Hanan the sum of Five Thousand and promissory said payment the of secure
“That to wife, joined by his P. Walton note, the said delivered and executed Grey, made, Frances mortgage deed, dated Hanan their said Isaac ’’ day October, of 1st and duly in- Hanan Isaac thereafter the said
“That your note to promissory and transferred said dorsed assigned said Trustee, and transferred orator, mortgage it.” denied of defendant's
The answer they pur- day October, 1925, of “That on the 1st described chased the lands mortgage *5 original mortgage, The bill of refers to part thereof, bearing thereto attached and made a date
963 acknowledged 1, 1925, appears which to have been notary with official 9th, public a on November before seal. simple required in in short
Defendant his answer is by the each claim asserted terms to out his defense to avoiding any bill, omitting mere statement of evidence bill, specifi- any averments of the but general denial upon the facts cally admitting denying explaining or or without relies, the defendant is the defendant unless which state, state- shall so and such knowledge which case he Comp. (3118), 4904 Section operates ment as a denial. Sant, 98 Fla. Florida, 1927; Bostwick v. Van Laws of Gen. 565, 124 So. R. 14. in his cannot shelter himself behind
Defendant answer evasive, terms, mislead or doubtful and thus equivocal, general a denial which amounts complainant, nor behind negative pregnant an evasion than a to no more Ency. Pl. & Pr. McBride points of substance. 564, 64 So. R. 235. Worley, 66 Fla. knowledge he the facts are within defendant’s
Where (1 Ency. Pl. & Pr. Bost positively must answer (3118), Comp. Sant, supra; Section 4904 Gen. v. Van wick Florida, qualifying answer 1927, an evasive and Laws of Ency. & an admission. PI. held to amount to been has Pr. 930. up that defendants: answer also sets
The June,. 1925, entered day of the 3rd or about “On Isaac Hanan writing with the said contract into a * * * the lots described purchase certain build- agreed to erect thereon complaint, part agreement and as in said ings. That (Italics., said'lots purchase fully com- Hanan Isaac the said supplied), *6 964 sidewalks and curbing and paving, install
píete the electricity what was known on water, gas and supply * * * 1, 1925” Drive as Shore West ** n * uncompleted were improvements and “said 1925, October, as day of the first on or before merely holds as trustee complainant that upon,” and trust took with que complainant and cestuis and that notice. answer, tak for hearing bill and after time
On a on every responsive answer ing testimony, allegation 556, 45 Jenerson, v. Fla. true; (Ropes the bill is taken as held 79) Court has 955, 110 R. and this 34 So. R. A. S. setting up partial failure an to a foreclosure that answer upon com proof casts the burden 458) 41 (Otis McCaskill, v. 51 So. R. plainant, Fla. hearing de court on -final render such that the should right justice may require, cree of the case may, cause, good open for the ease to allow time further testimony. 86; taking Equity Rule DaCosta No. Dibble, 40 Fla. 24 R. So.
The answer here complete was not a bar to bill and there was no evidence from which the could chancellor ascertain the exact complainant. amount due hearing
On final on bill and answer, where the chan- cellor equitable cannot render an decree on the pleadings it is error to dismiss the bill with prejudice. such Under conditions, the chancellor should dismiss prejudice, without proper allow all amendments to pleadings proceed taking testimony. with the Mershon v. 79 Barnard, Fla. 253, 95; 84 So. R. v. Miller, Platt Fla. 72 So. & Goodman, R. Besson Co. v. 147 Fed. R. 887; Equity Rule No. 86.
Reversed. *7 Per Curiam. —The record been con- by Court, foregoing opinion sidered prepared under Chapter by Acts adopted the Court opinion, as its it considered, is ordered and decreed Court that the decree of the court below should be, hereby, the same is reversed. J., C.
Terrell, Whitfield, Ellis, Strum, Brown J., J. Buford, concur. American Bank and Banking Company, Trust Corpo Roger Error,
ration, B. al., et De Lyle, Plaintiff in Error. fendant
Division B.
Opinion filed October 21, 1930. Petition for rehearing denied November II. W. Holland and Charles Fisher, Plaintiff Error; and delivered notes and executed set forth.” therein that on or June 3, The answer admitted about defendants a deed Hanan executed delivered to Isaac payable $5000.00 land and back note for to said took year date, by mortgage dated June one after secured upon receiving deed into 1925, and that defendants went mortgaged land. The possession of the answer further set forth mortgage up “That the bill com- if plaint was executed delivered these solely they deny, mortgage which then such was made purpose correcting drafting for the an error in the mortgage 3rd, 1925.” June