63 Fla. 448 | Fla. | 1912
(after stating the facts.)— There was no error in the order overruling the demurrers of the defendants to the bill. The demurrers were to the bill as awhole, The established rule here is that a general demurrer for want of equity will be overruled, if there is any ground for equitable relief stated in the bill, and this even if there are any number of grounds of special demurrer. Johnson v. McKinnon, 45 Fla. 388, 34 South. Rep. 272; Hull v. Burr, 58 Fla. 432, 50 South. Rep. 754; Futch v.
The complainant in this bill when she became the purchaser of the mortgaged property at the sale under the foreclosure decree of the Lewis. mortgage for the full amount due upon such decree, when, for any reason, the foreclosure proceedings are void, thereby became subrogated to all the rights of the mortgagee Lewis in and to such mortgage and the indebtedness that it secured. She became thereby virtually an equitable assignee of such mortgage and of the debt that it secured, with all the rights of the original mortgagee. Burns v. Hiatt, 149 Cal. 617, 87 Pac. Rep. 196; McCague v. Eller, 77 Neb. 531, 110 N. W. Rep. 318, 124 Am. St. Rep. 863; Wiltsie on Mortgage Foreclosure, p. 148 and cases there cited, and p. 104, section 92. Becoming thus the equitable assignee of the Lewis mortgage she became entitled to an action de novo for the foreclosure thereof against all parties holding junior encumbrances or the legal title to any part of the mortgaged property, who had been omitted as parties to such original foreclosure proceedings under which she bought. Wiltsie on Mortgage Foreclosure, p. 104, section 92, and authorities there cited; Dodge v. Omaha & S. W. R. Co., 20 Neb. 276, 29 N. W. Rep. 936; Jordan v. Sayre, 24 Fla. 1, 3 South. Rep. 329, S. C. 29 Fla. 100; 10 South. Rep. 823. And haying become the owner by assignment and transfer to her of the second mortgage made by the original mortgagor John J. Philbrick to Eduardo H. Gato as against these answering defendants she has the
Where a mortgagee holds two or more mortgages npon the same premises they should both be set out in the complaint and foreclosed in the same action, only one suit to foreclose both being proper. Wiltsie on Mortgage Foreclosure, p. 323, and authorities there cited; Pierce v. Balkam, 2 Cuch. (Mass.) 374. From what has been said it will be seen that there was‘abundant equity in the bill, and the court below correctly overruled the general demurrers thereto.
The defendants’ pleas and the complainant’s exceptions to the answers of the defendants present the question as to .whether these defendants have the right to set up the defense of usury as to the Lewis mortgage; and the defense of a failure or want of consideration for the Gato mortgage. Charles A. Murphy, from and through whom both of the defending defendants derived their title and claim to a portion of the tract originally mortgaged to Lewis and Gato, derived his rights and title thereto by means of the purchase thereof at a Master’s sale under a decree of foreclosure of mortgage in the Federal Court in favor of the Laflins against W. J. H. Taylor, who had purchased from the Laflins such portion of said, tract, and who had, as a part of his purchase price for said property, expressly agreed to assume and to pay the said two mortgages to Lewis and Gato. It is well settled that a subsequent purchaser who expressly assumes the payment of prior existing mortgages upon property that he buys, as pat of the purchase price for such property, is estopped to defend against such mortgages either npon the ground of usury or on the ground
We find no error in the record, and the orders appealed from are hereby affirmed at the cost of the appellants.