*1 1205 suffiсient court shall find jealous scrutiny, and the vs. judgment. Smutzer the law warrant under Rep. 314. Such 48 Pac. Stimson, App. 9 Colo. facilitate parties intending to agreements between the upon а fraud procuring of a are therefore divorce of the state courts who behalf the law Sayles 312.” Sayles, vs. N. H. administer law. is appealed from should be and it The affirmed order so ordered.
Affirmed. Brown, J.J.,
Ellis concur. Whitfield, P.J., Davis, J.J., concur Terrell judgment. opinion and in the Bath, Inc., corporation, Mur- Appellant, v. Ella Gus’ ray Cooper C. Lightbown, joined her husband, Lightbown, Appellees.
Opinion filed March 1931. for rehearing May 29, Petition denied *2 Baynes Rowe, Appellant; & for Bussey, LilUenthal, Appellees. Jolmston & *5 Per Curiam. The record in having this cause con- been opinion sidered Court, foregoing prepared and Chapter under 1929, adopted Acts of the Court *6 by and decreed ordered, considered, opinion, it is as its be, should below court of the that the decree the Court hereby is affirmed. and the same Brown, C.J., and Terrell, Ellis, Whitfield, Buford, Davis, J.J., concur. and Rehearing.
On Opinion May 29, Rehearing, on Filed 1931. setting up money in pleading payment A tender of as a defense 1. to prоduction money suit, good, to a must a of the to be show paid go, person be and offer of it to the to whom it should and ac- ready pay, must be that the debtor has ever since been to mere companied by payment money A of the into the court. a pay money. offer to is not tender of a in effect exercise an of a suit to foreclose is 2. The institution principal option mortgagee to declare the whole of the of the payable. by sum and due interest secured mortgage debt "forthwith” option An the whole of a 3. declare or immediately upon after immediately signifies or due within reasonable election, and if an election is holder’s implied waiver conduct. time there is no County; E. Court, Beach C. Appeal Circuit Palm from Chillingworth, Judge. rehearing for denied.
Petition Baynes, Petitioner; E. M. for Appellees. Bussey, LilUenthal, Johnston & for Andrews, Commissioner: rehearing before petition
It is -contended on the “tend- payments past due were filed, suit was the interest rejected mortgagor were mortgagee by ered” to the filed on was after suit and returned her to defendant upоn relied February interest 21, 1928. The default pay- due and became accelerating this suit was that which interest semiannual 24, 1927, not the able October made February 24, The “tender” which duе fell form 1927 was due October as to the interest of a February portions letter 16, 1928, pertinent dated of which read as follows: *7 Beach,
“Palm Florida n 2-16-28 Lightbown “Mrs. Ella M. Beach,
Palm Florida. Lightbown:
“Dear Mrs. enclosing “Wе are apply check for account $500 to on of maturing your mortgage 24, on interest on Oct. 1927 expect you following and we to be able to mail cheeks up as indiсated to take of the ac- balance count :
On Feb. 20 $500.00 .
Feb. 25 $500.00 . 28 Feb. $250.00 28 Feb. interest on past due items to date 46.54 contemplating “We are refinancing obligations our in arrange your believe we could up to take sufficiently full before it if a propo- matures attractive Kindly just you sition is made us. let us know what willing are to do in case able to an we arе make such * * * arrangement.
“Yery truly yours, Baths, Gus’ Inc. By Jordahn Gus ’’ President. reply by appears No to have been received defendant acceptable. to this letter as tо whether or not offer its was recogniz- thisWas a “tender” such an one as should be As binding ed as under the of case? circumstances this bearing complainant $500.- on this, testified that the first сheck, having mentioned in the letter as been enclosed check was never received. The bank testified that a teller one” it never “certified” him for “some but was was аmong the can- slip A bank.' debit thereafter cashed “charg- was $500.00 defendant shows checks of celled bank. at the of defendant against the account” ed 1927, 24, October рart of the for a If first check this it would actually accepted by complainant, was interest general in effect a waiver under the rule such cases of the chancellor’s payments. accelerate the The effect accepted. or decree it not received is that was upon, peti apparently relied сited, “In the case v. Phosphate Co. rehearing (Kreiss Potassium tion for Knight, 751) 98 Fla. 124 So. it was held that
“A pleading setting money up payment as tender suit, good, production defense to a to be show a must money *8 paid person of the of to be and offer it to the go, to it whom should and that the debtor has ever ready since been pay, by to accompanied and must be payment of money the into court. A the offer mere pay to is money.” not a tender of The Court also held that
“A agreement delay mere for no definite time without consideration is not enforceable.” See eases there cited: mortgage any
The in provides the instant suit that if payment days interest paid is not within 30 next after it mortgage becomes due that said shall become “due and payable option forthwith or at of the” thereafter the holder, etc. It was held above-cited casе that: the quite generally held, Florida,
“It is it is in that the as of institution of a suit for is the the foreclosure exercise the option mortgagee of of the to declare the whole principal by mortgage sum and interest secured the 74 Mahin, 525, 73 Fla. payable. due Prince v. Fitts, 1046, 512, So. 696; v. 53 Fla. 43 So. Graham 149; 851; Wood, 13 41 Corlett v. Ann. Cas. C. J. 81 88 268.” Fla. So. appears
It only that any the of evidence of exercise the option which knowledge came to the of defendant was the filing of February the suit on
In the above opinion complain- case the stаtes that the ant never at of paying either the interest dates aforesaid expected indicated that he or intended to declare all notes due, but on speсifically the other hand stated to the defend- ants that agreeable carry it'would be to said interest on paying basis of complainant defendants’ on said 8% past due interеst. allegation purport appears
No of similar in the instant case, any nor appear does there that could be evidence interpreted waiver, by as а unless mere silence or conduct. allegations
The show the answer are insufficient to ,a legal prior to tender the due interest October complainant’s option filing exercising the to foreclose express bill. It the must was no be admitted there waiver, only question remaining if whether not, is testimony or not the show a waiver conduct answer estоp complainant exercising as her such will from mortgage. option under the acceleration clause.of “immediately option The to declare debt signifies whiсh “forthwith,” due” means the same as election,” and “immediately upon'or holder’s after the *9 default, immediately after bound the holder is not to elect testimony may shows but a reаsonable time. The within delinquent about had been that the October 24th interest mortgage beyond days grace of when the sixty days the 30 foreclose, which could not was turned over to solicitors to though complain- time even considered an unreasonable be 24, April accepted of interest due had an instalment ant past due, as 1927 was 1927, of October after interest yet right not accrued. a indulgence cannot affect such A. Knight, supra; 5 Phosphate Kreiss v. Potassium Co. L.R. 437.
In that are the instant case evidence shows there the a prior mortgages being foreclosed; two to the one here $25,000.00. mortgage first for $110,000.00 for and a second of above, special In the case mention is made last-cited property the fact that the value the there was of involved the alleged in of the answer to be twelve times value may mortgages Thus, prior debt. the amount of important which a become an element in foreclosures of may equity cognizance. court of take alleged improvements As have been to the valuable tо they made, appear chiefly necessary repairs, have been except costing a certain lunch stand about one thousand fur- dollars for whose a of dеfendant construction lessee costs, not become a de- nished the and therefore it does termining in this element ease.
Finding granting rehearing a no sufficient cause for рetition said is denied. petition this rehearing filed in Curiam. The
Per Court, fore- having cause been considered Chapter going opinion prepared 14553, under Acts 1929, adopted by оpinion, it is considered the Court as its petition be, and ordered the Court the said hereby the same is denied. C.J., Brown, Whitfield, Ellis, Terrell,
Buford, Davis, J.J., concur. Ringling Company, corporation, The Charles Plaintiff Error, B. C. Error. vs. Muirheid, Defendant
Division A. Opinion filed March