51 Fla. 495 | Fla. | 1906
On June 9th, 1904, the appellee, D. Hughes, filed a bill in chancery in the Circuit Court for Holmes county against the appellants for the foreclosure of a mortgage on certain real and personal property. The bill alleges that on January 15, 1904, J. Z. Mayo executed and delivered to the Sanford Lumber Co., a corporation, his promissory note for two hundred and fifty dollars payable one day after its date with interest until paid; that J. Z. Mayo and his wife, Joann Mayo, executed and delivered to the Sanford Lumber Co., a mortgage to secure the payment of the said note; that subsequent to the execution of said note and mortgage, and prior to the institution of this suit, the Sanford Lumber Co., for a valuable consideration, assigned and transferred said note and mortgage to the complainant D. Hughes. There are other usual allegations for the foreclosure of a mortgage, and $183.00 is claimed as the amount due, besides attorney’s fees. Copies of the note and mortgage and of the assignments of the same are attached as a part of the bill of complaint. The defendants answered under oath as follows: “Now comes said respondents, by their attorney, and for answer to the complainants bill to foreclose mortgage herein filed beg leave to humbly represent unto-
Whex-efore, said respondents now humbly pray judgment of said court in the said complainant ought to have and maintain said action herein instituted against them.”
It is contended that as the answer avers a failure of consideration the burden is imposed on the complainant to prove the negative; that the allegations of the bill were not sustained by the proofs since it required two witnesses or one witness and corroborating circumstances to overcome the averments of the sworn answer; and further that the proofs establish the averment of a failure of consideration, and that consequently the decree of foreclosure is erroneous.
Averments of a sworn answer must be as to matters of personal knowledge and must be directly and positively responsive to material allegations of the bill in order to be conclusive evidence in favor of the parties answering unless overcome by the testimony of two witnesses or by the testimony of one witness and other corroborating circumstances. See Pinney v. Pinney, 46 Fla. 559, 35 South. Rep. 95; Ocala Foundry & Machine Works v. Lester, 49 Fla. 347, 38 South. Rep. 56, and authorities cited.
If proper averments in a sworn answer of a failure of consideration are direct, positive and certain they impose the burden of proof on the complainant, and if such averments are of personal knowledge and are directly responsive to the allegations of the bill, they may be conclusive evidence in favor of the parties answering unless overcome by the testimony of two witnesses, or the testimony of one witness corroborated by other circumstances; but direct, positive and certain averments of a failure of consideration sufficient to impose the burden of proof on the complainant yet which are not directly responsive to the allegations of the bill, are not such evidence in favor of the parties answering as requires the complainant to produce more than the testimony of one witness.
The answer does not deny any of the allegations of the bill, but admits the indebtedness of Mayo to D. Hughes and the execution of the note and mortgage as alleged, and admits on information and belief that the Sanford Lumber Company paid to D. Hughes $66.66 on said indebtedness. These admissions in the answer were of ma
As to failure of consideration it is averred that the Sanford Lumber Company agreed to pay D. Hughes the indebtedness of about $250.00 due him by J. Z. Mayo and to give J. Z. Mayo employment and that the Sanford Lumber Company has not paid said indebtedness to D. Hughes. It is not averred that the Sanford Lumber Company did not give employment to Mayo, or that Mayo was in any wise prevented from paying the debt at the rate of $50.00 per month as agreed, and the amswer admits that only $66.66 had been paid on the indebtedness of Mayo. A further averment of failure of consideration is that in consideration of the promise of the Sanford Lumber Company and the execution of the note and mortgage to the Sanford Lumber Company by Mayo, D. Hughes agreed to discharge Mayo from all his indebtedness amounting to some few dollars less than $250.00, and agreed to return to Mayo “all the papers, notes and mortgage” which Hughes held against Mayo, but said “notes and mortgage” have not been returned. It is not averred that Hughes did not discharge Mayo from the indebtedness mentioned, and the averments as to “papers, notes and mortgage” agreed to be, returned and as to the “notes and mortgage” not returned as agreed are lacking in certainty.
The consideration alleged in the bill and shown in the mortgage is admitted in the answer, and the decree of foreclosure was apparently based thereon. The averments in the answer as to additional consideration, and the failure of the same, contradicts the admissions of the answer, and are not directly and positively responsive to the allegations of the bill; and even if they were so directly and positively averred with sufficient certainty as to
The decree is affirmed.