62 Fla. 546 | Fla. | 1911
— This is a suit to reform a mortgage and enforce it as a lien upon a lot in Lakeside sub-division of St. Petersburg, Florida. It appears that in February, 1908, J. F. Lindsey, now deceased, gave Vincent Ridgely a mortgage on realty described as Lot number Nine (9),
It is stated in appellant’s brief that there were two platted sub-divisions of St. Petersburg, known respectively as Lakeside and Bayshore, about a mile apart, but we do not find this in the record.
We confess to a degree of uncertainty as to the exact status of the pleadings. The so-called “answer” of Merrill neither admits nor denies one allegation of the bill, but sets up an independent fact to avoid the equity-thereof, and should more properly be considered a plea. Again the complainant joins issue on this “answer” and then upon the hearing admits all its allegations of fact. Ordinarily an answer proven calls for a dismissal of the bill as to the party answering. The replication to the “answer” is in the full form, containing the statement “that the said answer is uncertain, untrue, and insufficient to be replied unto,” and the parties before the Circuit Court as well as before this court, treat the cause as if a plea were set down for argument, or as if upon bill and answer.
■Despite the conclusion in the answer that Merrill was a bona fide purchaser without notice, we think he had notice and bought the property subject to the mortgage.
It is further urged as error that the court adjudged the attorney’s fee without proof as to its reasonableness. The master adjudicated the fee at $108.66, which was one-tenth of the principal debt and interest. The note incorporated in the mortgage provided for ten per cent, of the principal and interest as attorney’s fee, and the mortgage further provided that a reasonable fee be allowed. We cannot say that the note itself was not some evidence upon which the master may have acted, and there is no intimation here that the amount allowed was unreasonable, nor does it appear to be so upon its face. In the cases heretofore decided by this court, the amount was not fixed by the parties or the statutes or only the maximum was fixed. Carhart v. Allan, 56 Fla. 763.
We find nothing on this record of which the appellant may rightfully complain, and the decree is affirmed.