82 Fla. 293 | Fla. | 1921
This is a suit to foreclose a mortgage on real estate located in Dade County. The bill of complaint is in the usual form with certified copy of the mortgage deed attached and made a part thereof. Defendants demurred to the bill and the demurrer was overruled. They then filed an answer, one paragraph of which was, upon motion of counsel for complainant, stricken. Within the time allowed an amendment to the answer was filed setting up the same defensive matter attempted to be set up in the paragraph of the answer previously stricken. Thereafter a master was appointed to take and report the testimony. Upon the coming in of his report final decree was entered foreclosing the mortgage as prayed. Appeal from this decree was taken and errors are assigned upon the orders overruling the demurrer to the bill, granting the motion to strike a paragraph in the defendant’s answer, and entering the final decree.
The first assignment contains no merit. It is mentioned but not argued in the brief of counsel for appellants.
The defensivé matter attempted to be set up in the paragraph of the answer which was stricken is contained in the amendment to the answer filed later, so that if there was error in the order granting the motion to strike,' it cannot be said to have been harmful to defendants.
The defense interposed in the answer was of an affirmative character. The burden of proof was therefore upon defendants. Parsons v. Ramsey, 53 Fla. 1055, 43 South. Rep. 503; Edgerton v. West, 43 Fla. 133, 30 South. Rep. 797; Lakeside Press etc. Co. v. Campbell, 39 Fla. 523, 23 South. Rep. 878. It appears from the record of the evidence that various documents and letters were offered in evidence, none of which are copied in the transcript of the
From the averments of the answer and the evidence it appears that prior to the institution of the suit something in the way of an agreement was entered into between the parties by which payment of the indebtedness was to be made part in cash and part by a conveyance from defendants to complainant of certain described lots of land. This agreement was never consummated and the controversy hinges around its terms and conditions and failure of .consummation. In drafting the final decree it appears that by inadvertence or mistake the lands described in the answer, which under this alleged agreement defendants were to convey to complainant, and not the lands described in the bill of complaint and mortgage, were set out. Because of this error in the description of the property the decree will be reversed but with directions that a final decree of foreclosure be entered by the Court below upon the property described in the bill' of complaint and mortgage attached thereto sought to be foreclosed.
Reversed.
