26 Fla. 465 | Fla. | 1890
One Williams sold certain lands in Volusia county to appellant and P. W.Burr, in 1872, and appellant and Burr, on the same day, gave a mortgage on the lands to secure the payment of ten promissory notes of theirs for the purchase price, some to Williams, some to C. A. Relf, and one to W. A. Robinson. Burr afterwards sold his interest in the lands to appellant. Williams having died, J. S. Relf was appointed administrator of his estate. C. A. Relf, and her husband J. S. Relf, and J. S. Relf, as administrator of Williams, claiming that two of the notes to C. A. Relf, and two of those to Williams remain unpaid, filed a bill against appellant to foreclose the mortgage on such of the lands as he still owned, for the satisfaction of the unpaid notes, and also for the recovery of moneys paid for taxes on the lands, which appellant failed to pay, permitting the lands to be sold for said taxes.
The bill was filed in Volusia county, but in consequence of the disqualification of the Judge to try the case it was transferred to St. Johns county, in another circuit. This was done' without notice to appellant, and he presents it here as error. After the transfer, his solicitor entered a general appearance, filed an answer and a cross-bill, and proceeded in the case till the final hearing and decree, but made no objection to the transfer. Having thus acquiesced in the transfer, his objection to it in this court comes too late.
After the appearance for defendant was entered, a plea of merger was filed, based, as alleged in the plea, on this statg
Without regard to other manifest insufficiencies of the plea, we will limit ourselves to the question of merger which it attempts to present. “In law a merger always takes place when a greater estate and a less coincide and meet in one and the same person, in one and the same right, without any intermediate estate. The lesser estate is annihilated or merged in the greater.” I Jones on Mortgages, Sec. 848. Frequent examples of this occur in cases of mortgage of real estate. When a mortgage on lands and the equity of
And we are also authorized to take this view from the state of the pleadings. One of the allegations of the bill is that Mrs. Relf, one of the- mortgagees, “was forced to bid in a large proportion of the property at tax sale for non-payment of the taxes thereon to protect her interest therein, and has paid the taxes thereon for’each succeeding year to preserve the same as a security for the claim of your oratrix (Mrs. R.) and your orator (Mr. R.) as administrator” of Williams. The defendant nowhere denies this. The rule in such'a case is, that “upon the argument of a plea, every fact stated in the bill and not denied by the averments in the plea, and by the answer in support of the plea, must be taken as true,” 1 Daniell’s Chancery Pleading and Prae
Another difficulty in the way of the merger is that .the purchase was by only one of the mortgagees. The other mortgagee, Williams, represented since his death by his administrator, who, as such, is one of the complainants in the bill, has no other than his mortgage title, and hence there is nothing whatever to work a merger as to him.
In opposition to the doctrine on which we base our conclusion, we are cited to South Carolina cases (Devereux vs. Taft, 20 So. Ca., 555; Bleckeley vs. Branyan, 26 So. Ca., 424), which sustain the position of appellant. But that State stands alone on the subject, and these and other like decisions of her court are more stringent than any we find from other courts. Without discussing the matter further, we think the better and more equitable rule is that which we have adopted and which gives effect to the intention of the party who unites the higher and lesser title in himself, and also takes account of his interest as shown by the circumstances. We think this accords with the great mass of authority. See 1 Jones on Mortgages, Chapter on merger, and authoities there cited; and 2 Pomeroy’s Equity Jurisprudence, Sec. 786, et seq.
In our opinion the other errors set forth in the petition of appeal are not well assigned, but it is unnecessary to give our reasons at any length. The cross-bill is clearly defective in many respects-—-as to insufficiency in making parties and in its statement of the matter of the original bill; in being uncertain and indefinite as to those matters on which counter relief is sought, and in seeking relief which, if allowable at all, might have been had under appropriate
The decree will be affirmed.