Moses v. WoodwardMoses v. Woodward
After the answer was filed, the complainants, by leave of the court, amended their bill by adding the following, designated as paragraph 9:
“And your orators aver that the defendants, Adelaide V. Moses, Annie D. Washington and Maude W. Brewer, pretend as аn excuse for their failure to pay the sums of money due by your Orator’s mortgage and to comply with the covenants in said mortgage, but cannot be heard to say, that there is in force and effect an agreement whereby the time for the payment of your Orator’s mortgage was extended, and whereby the said M. L. Woodward was put in possession of the mortgaged premises to collect the rents and profits therefrom and apply the same as follows: (1) to the pay-
This amendment was demurred to specially upon the grounds: (1) that it neither admits nor denies that there was an agreement between the said parties modifying the mortgage, and (2) that the paragraph shows on its face that the remedy of the complainants is to enforce said agreement, and not a foreclosure. This demurrer was overruled by the Court and the appellants have assigned as error the order of the court thereon.
Inasmuch as the first ground of demurrer is not argued in the brief of the appellants, we will disregard it. The second ground is based upon the assumption that the amendment contains an allegation that the agreement had been made. An inspection of the amendment discloses that it is not alleged that the agreement hаd been entered into be-
As a general rule, the plaintiff’s initial pleading need and should not, by its averments, anticipate a defense thereto, and negative or avoid it. 49 C. J. 149. See also, Hazen v. Cobb-Vaughan Motor Company, 96 Fla. 151, 117 So. 853.
“If the pleading itself states a cause of action, the fact that it also attempts to negative or avoid a defense is not a fatal defect, but allegations made for this purpose are immaterial and may be treated as surplusage, unless defendants wish to rely upon them, in which case he will be relieved from specifically setting up his defense and may accept the issue presented by the plaintiff.” 49 C. J. 151.
The amendment could have been stricken аnd the bill would have been a good pleading. 49 C. J. 84. See also, Kneeland v. Tampa N. R. Co., 94 Fla. 702, 116 So. 48; Stinson v. Prevatt, 84 Fla. 416, 94 So. 656.
“While it (surplusage) may be properly stricken out on motion it does not render a pleading subject to a demurrer, either general or special.” 49 C. J. 86.
The court committed no error in overruling the demurrer to the amendment to the bill.
The complainants alleged and proved that M. L. Woodward did, on the 10th day оf August, 1926, about two months prior to the alleged agreement with him, transfer, assign and deliver to the complainant, Eliza M. Woodward, all of his right, title and interest in the mortgage and notes by an instrument under seal, which instrument was recorded on the 2nd day of November, 1926. While an endorsement of the notes would have carried with them (Evins v. Gainesville Nat. Bank, 80 Fla. 84, 85 So. 659; Northrup v. Reese, 68 Fla. 451, 67 So. 136, L. R. A. 1915F, 554; McClure v. Am. Nat. Bank, 67 Fla. 22, 64 So. 427; Taylor v. Am. Nat. Bank, 63 Fla. 631, 57 So. 678, Am. Cas. 1914 A, 309; Stewart v. Preston, 1 Fla. 10), an indorsement was not necessary to transfer the notes. They were assigned in connection with the mortgage securing them by a separate interest. Like an ordinary chose in action, a note may be transferred
When the assignment from Woodward to his wife was admitted in evidence the relevancy of the notes was shown, and it would have been improper to exclude them from the evidence even on the mоtion of the defendants.
In this case, there is no basis for the application of the rule that “if evidence apparently incompetent only because its relevancy is not apparent, or because it is not the best evidence, is offered, the court may, in the exercise of its discretion, receive it conditionally, if counsel gives assurance that he will supply the necessary foundation afterward. If, however, such evidence is so conditionally received, and the necessary connecting evidence is not introduced, so as to show the relevancy of the admitted evidence, the court should exclude the evidence so received on its own motion; but if the failure to connect be not apparent or glaring, the objecting party should move to exclude.” See Wilson v. Jernigan, supra; Pittman v. State, 51 Fla. 94, 41 So. 385; 8 L. R. A. (NS) 509; Walker v. Lee, 51 Fla. 360, 40 So. 881.
By the common law, a contract under seal could not be modified or abrogated by a subsequent agreement unless the same was also under seal. 6 R. C. L. 915. In line with the common law rule, this Court has held that an instrument under seal cannot be modified by a subsequent executory parol contract. Tischler v. Kurtz, 35 Fla. 323, 17 So. 661. Appellants recognize the rule, but insist that in the case at bar, the terms and conditions of the mortgage were superseded and abrogated by the alleged parol agreement, because it had been executed by the parties thereto.
If we assume that the alleged agreement constitutes a good affirmative defense to the suit, if proved, we are unable to see how a reversal can be had upon the theory that the equities are not with the complainants. When an answer in an equity proceeding sets up an affirmative defense, the burden is upon the defendant tо establish it. Lonergan v. Publes, 77 Fla. 188, 81 So. 514. No witnesses were produced by the defendants to sustain the answer. M. L. Woodward, a witness for complainants, testified in effect that he was in possession of the property for a year; that he took charge of it under an agreement between the holder of the first mortgage and Adelaide V. Moses and Maude W. Brewer whereby an extension of two years on the principal of the first mortgage, which was owned by Plus R. Levi, was secured, upon conditions thаt six months interest would be paid every six months in advance, and that he, the witness, would be allowed to take possession of the property, collect the rents and out of such rents pay for insurance and repairs, pay taxes, then the interest on the first mortgage, after that, interest on the second mortgage and then if anything
The evidence fails to show that the owners of the notes and mortgage, M. L. Woodward or Plus R. Levi, acting for them, entered into pаrol agreement with the mortgagors to the effect that the rents and profits derived from the apartment house were to be taken in lieu of all payments due and to become due on the mortgage debt involved in this litigation, or that Mrs. Levi and Mrs. Woodward ever
Only one other assignment of error is argued hеre, and that questions the propriety of the finding and decree of the amount due complainants on the principal sum and interest thereon. It is the contention of appellants that the appellees were mortgagees in possession of the mortgaged premises and were therefore bound to keep a strict account of the rents and profits, and until they had accounted for such rents and profits they were not entitled to a decrеe. The evidence furnishes no basis for such a contention. There is room for an inference that M. L. Woodward was the agent of the mortgagors to collect rents and disburse the same, but we are unable to find anything in the evidence that will support a statement that the holders of the mortgage in suit were in possession of the property covered by the said mortgage.
The decree of the lower court is affirmed.
Per Curiam.—The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered, and adjudged by the Court that the decree of the court below be, and the same is hereby affirmed.
Buford, C. J., and Whitfield and Davis, J. J., concur.
Ellis and Terrell, J. J., dissent.
Brown, J., disqualified.
Re-hearing Granted.
Per Curiam.—This cause was decided on the original hearing with two of the Justices dissenting from the con-
The evidence is vague and uncertain as to some of the matters put in issue by the answer, and upon that issue, a majority of the Court are of the opinion that the ends of justice will be subserved by granting a re-hearing.
An agreement based on a valid consideration between mortgagee and mortgagor for an extension of time for the payment of the indebtedness secured by the mortgage is a good defense in a suit to enforce the mortgage lien. Armton Corporation v. Brown, 101 Fla. 764, 135 Sou. Rep. 802. Such an agreement was attempted to be set up in the answer as а defense and the bill was amended apparently as to confess and avoid it by trying to show that such an agreement, if made, was renounced and abandoned by the mortgagors, so as to render it unenforceable. The evidence tends to show the making of such an agreement and that the mortgagee took possession of the mortgaged property under it. If such an agreement was validly made, the burden of showing its abandonment or breach, with consequent inability to claim the benefits of it, may have been on complainant in the foreclosure suit and not on defendants, in view of the state of the pleadings above referred to.
The evidence being vague and unsatisfactory in many particulars going to the complainant’s right to foreclose as against the attempted defense asserted by the defendants, and the Court having been divided on the first hearing with one Justice not participating, a majority of the Court now participating in the consideration of this case have reached the conclusion that a re-hearing should be granted with leave to either of the parties to present additional briefs, if they so desire, within thirty days from the date
Re-hearing granted.
Buford, C. J., and Whitfield, Ellis, Terrell and Davis, J. J., concur.
Brown, J., disqualified.
Opinion on Re-hearing
Terrell, J.—Appellees, as complainants, brought suit against appellants, as defendants, to foreсlose a junior mortgage. The joint and several answer of defendants admitted the execution of the notes and mortgage sued on but as a defense to the foreclosure interposed a parole agreement entered into by the parties in which the maturity of the notes and mortgage was extended and under which M. L. Woodward, the original mortgagee, took possession of the mortgaged premises with the right to collect the rents and profits therefrоm and apply the same to the payment of the taxes and up-keep, the interest on the senior and junior mortgage, and when said amounts were paid the balance to be applied to the payment of the principal of the senior mortgage until paid and then to the payment of the principal of the junior mortgage until paid. It is also alleged that by said agreement the rents and profits so taken and applied were in lieu of all pаyments due and to become due on said mortgage, that the premises were delivered to the mortgagee pursuant thereto and that the mortgagee went into possession of said premises under said agreement and collected large sums thereunder which have not been accounted for.
By permission of the chancellor the complainants amended their bill of complaint to allege that if any such agreement as the foregoing was еntered into by the parties it was
Appellants contend that the agreement entered into by the parties and asserted by them (appellants) as a defense to the foreclosure amounted to a novation of the mortgage indebtednеss and that now the only relief open to complainants lies in the enforcement of said agreement.
A novation is the substitution of a new debt or obligation for an existing one. It consists of two stipulations, one to extinguish the old debt and the other to substitute the new one in its place. Novation has been held to arise in different ways. The debtor and the creditor may remain the same and a new debt take the place of the old one or the debt may remain thе same and a new debtor substituted, or the debt and debtor may remain the same and a new creditor substituted. Whether or not a novation arose in this case is one for determination on proof of the essential elements of the alleged agreement, the intention of the parties thereto and whether or not it was in good faith lived up to by all the parties.
As against the contention of appellants, appellees contended that the agreement brought in question cannot have attributed to it the importance claimed because it was in
It is alleged that the parole agreement involved here was so acted upon. The evidence tends to prove the agreement, that both parties accepted its terms, that the mortgagee went into possession of the mortgaged premises and that he collected rents alleged to have amounted to several hundred dollars, the record is not clear on the fact of just how much was collected.
The fact of the mortgagee getting in possession of the premises to work it out of debt in the manner alleged may have been sufficient consideration to support the agreement and if made it was a good defense to the foreclosure suit. Armton Corporation v. Brown, 101 Fla. 764, 135 So. 802. In the state of the pleadings, if the agreement was made the burden of showing its breach by the mortgagors and the resultant inаbility to claim the benefits of it was on the complainant.
Appellants were at any rate entitled to an accounting of the rents collected and to show what benefit they were entitled to under the agreement. The evidence is vague and
For these reasons we think the cause should be reversed on re-hearing.
Reversed.
Davis, C. J., and Whitfield, Ellis and Buford, J. J., concur.
Brown, J., disqualified.