Davis v. Horne

57 Fla. 396 | Fla. | 1909

Per Curiam.

The appellee filed a bill against the appellants for the foreclosure of a mortgage. An answer was filed by J. E. Davis and L. M. Davis, the principal defendants, who are alleged to have executed the’ mortgage sought to be foreclosed, in which they undertake to meet the equities of the bill, and J. E. Davis, Jr., an infant under the age of twenty-one years, who was also a defendant, by his guardian ad litem .filed the customary answer in such cases. A replication was filed to these answers and an order was made by the court referring the cause to a special master to take the evidence therein and also to make his finding of facts. Voluminous evidence was taken by such special master, who duly reported the same, together with his’ finding of facts, the latter being to the effect that the material allegations of the bill had been sustained. A final decree was rendered based upon the pleadings and evidence and findings as reported by such special master in favor of the complainant, in accordance with the prayers of his bill. The defendants entered their appeal from this decree,, assigning five errors, all of which are expressly abandoned except the last two, .the defendants stating in their brief that they “only desire this honorable court to review the merits of the case.” These two assignments so presented to us for consideration are that the court erred in rendering the final decree and also in denying the petition for a rehearing.

The principal defense attempted to be set up in the answer of J. E. Davis and L. M. Davis is the alleged fraud practiced by the complainant in securing the execution of the mortgage. It is also averred therein that a certain five acre tract of land, described in the bill and which is claimed by the complainant to be also subject to foreclosure by reason of being embraced within the terms of the mortgage, was not the property of such de fendants but of the infant defendant, J. E. Davis, Jr., and therefore not subject to foreclosure. There is more or less conflict in the evidence, but we see no useful pur pose to be accomplished by setting it out, or even attempting a synopsis thereof. We have given the same our careful consideration and are of the opinion that the fraud attempted to be set up as a defense has not been established by the evidence, and we are also further of the opinion that there is evidence which warranted the special master and the court in finding the five acre tract of land subject to foreclosure. No points of law appear in the transcript or are presented to or urged before us for determination. Upon the facts as they come before us we cannot say that any error has been committed, nor has any reversible error been pointed out to us. This being so, the decree must be affirmed.

Whitfield, C. J., and Shackleford, and Cockrell, JJ., concur. Taylor, Hocker and Parkhill, JJ., concur in the opinion.