*1 348 Ward, & for
Stapp, Gourley, Vining Appellant; Watson, for Appellee. M. Ray Appellee filed Bill in have cer- Per equity to a Curiam. Kenyon sum of money paid tain which one had Bank of Coral for payable Gables that Bank’s Check Cashier’s third check person, and which had been endorsed as- below, complainant signed appellee, the decreed be a claim. preferred complainant final decree was favor of granting
relief prayed. Liquidator appealed. Defendant opin- be reversed on authority
The decree should Amos, al., Comptroller, in the ion and case et judgment al., Baird, et 117 cases cited. Sou. there It is so ordered.
Reversed. Ellis, Terrell, J., and Whitfield, C. Brown Buford, J., concur. sole, Washington, Moses, Annie D. V. Adelaide feme sole, Washington, Anne D. known also feme sole, Martin, Brewer, a Maude W. B. John feme Mary wife, Martin, Platt Catherine M. E. his Hamp Henry husband, her A. Platt, Donald C. Woodward, Hamp, wife, v. Eliza M. Appellants, Iva his Woodward, friend, M. L. and next her husband joined by Levi, and next her husnand joined by and Isabelle Levi, friend, Appellees. Plus R. So.
141 So.
Division A. *2 March 1932. filed Opinion 13, 1932. April Re-hearing Granted 8, 1933. April filed Re-hearing Opinion 9, 1933. May denied Re-hearing *3 Boone T. Coulter, for Attorney Appellee.
Robillard, Copeland & and Therrell L. John At- Neeley, torneys for Appellees. appellees, Commissioner. The whom we will here-
after refer to the as complainants, filed their bill of com- plaint for the foreclosure of a mortgage. appellants, Moses, Adelaide V. Annie D. Washington and Maude W. Brewer, the mortgagors, filed their answer the to bill said the admitting of execution and *4 court, the amended their bill-by adding the des- following, as ignated paragraph 9:
“And your aver defendants, orators that the Adelaide V. Moses, Annie Washington Brewer, D. and Maude pre- W. tend as an excuse for failure their to pay the of money sums due by your Orator’s mortgage to and comply cov- with the in enants said mortgage, but be cannot 4ieard say, to that in there force is and an agreement effect whereby the time payment extended, for the of your Orator’s was and the L. whereby said M. Woodward put possession was in of mortgaged premises the profits collect the rents and and therefrom the apply (1) same follows: as pay- (2) pay- to the property, of the upkeep merit of taxes and payment to the (3) mortgage, ment of on the first interest balance (4) mortgage, and of interest the second mort- first of the principal payment be of the applied pay- td then paid, said was and until the gage whereby mortgage, and of the second principal ment profits said understood that rents agreed and it was and to become all due payments in be taken lieu hand, an for, on the other mortgage; due on said that made, Orators state fact to your agreement was wаs, in pursuance said L. said M. Woodward while the to-wit, mortgaged premises, of the possession agreement, defendants, Adelaide V. .... day January, Brewer, did Maude W. Moses, Washington, Annie D. agreement, extension did enter abandon renounce said in, been, now, are into, ever since have been, are ever premises, and have since mortgaged said their rents and therefrom to income now appropriating use.” own upon
This demurred specially amendment was there neither nor that grounds: that it admits denies (1) parties modifying between said agreement its face shows on (2) paragraph is complainants agreement, to enforce said remedy of foreclosure. demurrer was overruled by and not a This error appellants assigned have as Court and the order of the court thereon. of demurrer argued the first ground
Inasmuch is not it. appellants, disregard we will sec- the-brief the assumption uрon ond based that the amend- is ground been allegation agreement contains an had ment inspection An amendment made. discloses had be- been entered into *5 353 named de- It avers certain parties. merely tween sums “pretend, pay” fendants an excuse for failure * * * * * * “but, due on there is in an agreement fact hand, made, etc.” It is agreement the other such an allegation set- apparent an pleaders making avoided between if we assume parties, but ting up that it did set such an as is contended up agreement, see adds we are wherein the amendment appellants, unable to case complainants’ or detracts from statement of It complain^ as shown the bill. shows merely ants defendants their sought anticipate what the said suit, upon answer excuse the as defense to rely same. rule, a initial need general plaintiff’s pleading
As not, averments, thereto, a defense should its anticipate also, or avoid it. 49 149. See Hazen negative C. J. 151, 117 v. So. 853. Cobb-Vaughan Company, Motor action, “If the itself pleading states a cause the fact or attempts also defense negative that it avoid not defect, made are im- allegations fatal for this purpose but be as surplusage, material and treated unless defendants may them, upon wish to in which case will rely he be relieved up from defense speсifically setting accept his may plaintiff.” 49 presented by issue C. 151. J. have stricken and bill
The amendment 'could been also, 84. good pleading. been a C. See would have J. Co., Fla. 48; N. R. Tampa Kneeland So. Prevatt, 84 Fla. So. 656. Stinson v. stricken out may properly (surplusage)
“While demurrer, subject does render to a pleading motion it 49 C. 86. general special.” either or demurrer error in overruling no committed The court bill. to the amendment *6 354 error, excep-
Appellants overruling аssign also had,- report complainants tions the master’s finding that bill,’ competent evidence, by allegations sustained that equities complainant, sup- with and in were port assignment, complainant' of this contended it is Woodward, any Eliza not had interest M. did show she that suit, in notes in evidence in notes filed that subject assign- the condition the “indorsement shown, ment” that the evidence mort- shows that the charge gágees mortgaged premises took to collect the' same rents and to the and' apply upkeep of the property indebtedness, and, in therefore a novation of payment of indebtedness, the mortgaged complainants failed to .and prove mortgagors had abandoned and renounced the alleged agreement, extension and have ever since been in premises and the rents appropriating income therefrom.
The complainants alleged provеd M. L. Wood- the, did, 1926, two, ward 10th day August, about him, to the prior transfer, months with Woodward, complainant, Eliza M. ássign deliver all in of his interest right, *7 Notes, that, Article on Bills and “The difference be- practical tween transfer indorsement by assignment and transfer by is: the former the (1) equities, makes holder subject take indorser, assignor, distinguished the an (2) from the of a absence statute the contrary, is not liable to the assignee, except on implied his also, 3 warranties.” See R. 196, L.,C. 988 1 Sec. p. Mortgage on Foreclos Wiltsie ure, 4th ed. 407. within province It is the trial court the evidence, regulate order of the introduction of its discretion in such will matters be interfered with appellate court when “only an abuse thereof made clearly is 277, to appear.” 44; Wilson v. 57 49 Jernigan, Fla. Wil- So. 370, 51 41 Johnson, 395; son Fla. Stearns & v. So. Culver Adams, 394, 55 46 Lbr. Co. v. Fla. So. 156.
When assignment from Woodward to wife was his admitted in shown,
If we assume
agreement constitutes a good
affirmative defense
suit,
if proved, we are unable to
see how a reversal can be had upon the theory that
the
are
equities
not with
complainants.
When an answer in
an equity proceeding
up
defense,
sets
an affirmative
burden
upon
the defendant
establish
it.
Lonergan
Publes,
The evidence that owners of *10 elusion the should be appealed that from decree affirmed ' n as entered in the court below. uncertain, vague evidence is of as to some answer, put issue, in issue matters by upon a of majority opinion Court are the ends of of justice will be subserved granting re-hearing. a
An based on a valid consideration between mortgagee mortgagor for an extensión time for of payment a of. indebtedness secured good a defense in lien. suit enforce. to Brown, Armton Corрoration 135 Sou. Rep. 802. Such an agreement up set attempted to be in the the bill ap- answer as was amended defense show, so as-to avoid parently by trying confess and to made, agreement, such -an was renounced and abandoned as by mortgagors, render it to so unenforce- able. The tends evidence show the to making that, agreement and took possession of the mortgagee such, mortgaged property If under an agreement was .it. made, the burden validly showing its abandonment' or. breach, consequent with claim the benefits of inability it, may complainant in have been the foreclosure suit defendants, in view state. not on plead- -the ings above referred to.
The evidence being vague in many unsatisfactory particulars complainant’s .right foreclose going defendants, asserted against attempted defense on the hearing been divided first having' and' Court particiрating, majority Court with one Justice consideration of this have participating now case re-hearing granted should be reached the conclusion present either parties additional with leave desire, days from the date briefs, thirty so within if they- *11 counsel opposing order, tipon served to be copies of this filing. to prior granted.
Re-hearing Ellis, and Terrell J., and Buford, C. Whitfield^ J., concur. J. Brown, disqualified. J.,
Opinion Re-hearing on suit complainants, brought as Terrеll, Appellees, defendants, to foreclose junior appellants, against as of several answer defendants mortgage. joint and mortgage execution sued *12 Court, from decree. dissenting, is This two Justices opinion affirmed the decision below in writ- foregoing ten 1932. In Commissioner March Mr. filed by view unsatisfactory condition of the evidence a determine re-hearing granted to or not the whether complainants permitted should be to foreclose in view of the defense asserted by the defendants.
Appellants contend that agreement entered into by parties asserted them as a defense (appellants) foreclosure amounted to novation only that now the relief open indebtedness complain- to in ants lies the enforcement said agreement.
A novation is substitution aof new debt or obliga- for an one. tion existing It consists of two stipulations, extinguish one to the old debt and the other to substitute one in the new its has place. Novation held been arise to The ways. in different debtor .and the creditor may remain new place the same debt take the old one or same remain debtor debt and a may new substi- tuted, or the debt and debtor remain the same and a may Whether not new creditor or a novation arose substituted. proof in case for determination on this one of the essen- is intention alleged tiаl elements of agreement, the whether or it in faith good not was parties thereto parties. all lived to up appellants, con- appellees contention against
As in cannot have brought question agreement tended that the it claimed importance because was attributed 362 -
parole to do would written modify, so is instrument. The rule well that an or- executory settled agreement will parole -permitted abrogate or mоd- or a written sealed but rule is not with- ify instrument this exceptions. its A out written contract or be' agreement may or an oral has altered modified latter accepted acted manner upon by been parties would party work a on either refuse enforce fraud L., Busse, 403; 6 R. C. 917. 69 Bishop it. v. Ill. Pratt Morrow, 404; 45 American Mo. v. Hal v. Food Company stead, E., Perkins, 251; 165 Ind. 9 N. Monroe v. Covellard, 298; 316; Pick Beach v. (Mass.) Cal. Siebert Leonard, 433; Minn. Brockner, Bassini v. N. J. J.,L. 1051.
It parole agreemеnt here was involved upon. so acted prove evidence the agreement,' tends *13 terms, accepted both parties its mortgagee' possession into premises went the mortgaged and that he collected alleged to have to several rents amounted hun- dollars, dred on record is -clear of just fact how collected. much was
(cid:127) fact of mortgagee getting to work- premises it out debt in the manner alleged may havе been to support consideration the agreement sufficient good and if made it was to the foreclosure suit. defense Brown, 764, Corporation 13 802. Armton So. - In the state of if the made pleadings,' showing the burden of its-breach mortgagors to’claim the inability resultant benefits of it was complainant. rate Appellants any were at entitled to an accounting what to show rents collected benefit were/en-* they and-, the agreement.. to finder 'vague titled The-evidence'is 363: as ele- uncertain to these and as to other essential factors defense, ments abandonment the agreement, amount collected under otherwise as com- against foreclose defense plainants’ right interposed as to it.
For these cause should be reversed reasons we think the on re-hearing.
Reversed.- Whitfield, Buford, J., J., C. Ellis J.
concur.
Brown, J., disqualified. Cary ex el. Florida, D. Landis, Attorney- State George General, Relators, v. Rosenthal, Respondent. 769. So. April filed Opinion denied Re-hearing June notes but mortgage, denying in alleged also, defaults complaint. bill of They alleged that the terms and of conditions the notes and mort- gage abrogated superseded and by agreement an en- on tered 17th of December, into day with L.M. Woodward, assignor, of an undivided one-half said of the Levi, mortgage, notes and and her Isabella and through agent, payments husband as her be- and to whereby due comе on for a due said were extended period on, and years; subsequent two they to said date say to-wit, October, 1927, 31st day were in in they default payment interest due the mortgage they and that entered into an with the said Woodward “who was the owner in undivided interest the said mort- indebtedness,” gage whereby mortgagees waived the de- agreed fault and said Woodward should have the said to right possession take premises said and col- thereof, lect profits rents and and (1) same apply the to payment of taxes and upkeep'of the property, (2). payment of interest on a first (3) the payment suit, on the interest (4) the balance be applied to the payment principal of first mort- gage until said mortgage paid, was and then to the payment of the principal of a mortgage; second said rents profits were to taken in lieu of a.11 due payments become due on further, said mortgage. It was of the mortgage premises was delivered said under and virtue Woodward accord- ance with agreement, said said but Woodward Isabelle Levi breached and violated agreement. After the answer filed, complainants, leave of
Notes
notes title and. seal, an instrument by under which instrument was recorded November, on the 2nd 1926. While an day endorsement carried them the notes would have with v. Gaines (Evins Bank, 84, 659; Reese, ville Nat. 85 Fla. So. v. Northrup 451, 136, 554; 1915F, 68 Fla. 67 So. R. A. L. MсClure Bank, 22, 427; Am. Nat. Fla. So. v. Am. Nat. Taylor Bank, 678, A, 309; 63 Fla. 57 So. Am. Cas. 1914 Stew Preston, art v. an indorsement 10), necessary to transfer notes. were' in They assigned connection with the them securing separate interest. action, Like an ordinary a note chose be transferred may It assignment. authors 8 C. J., said Sec.
evidence notes relevancy of the them, have been improper it would to exclude from evidence on even the motion defendants. case, In therе this no basis is for the application of the rule “if evidence apparently incompetent only because its is relevancy apparent, not or because is not best evidence, offered, is may, court in the its exercise of discretion, receive it conditionally, gives counsel assur- ance that will supply he the necessary foundation afterward. If, however, evidence is' received, so conditionally necessary сonnecting introduced, evidence not so as to show evidence, relevancy admitted the court should exclude the evidence so received motion; its own failure but if the connect be apparent or glaring, the objecting party should move to exclude.” See v. Wilson State, Jernigan, 94, Pittman 51 supra; v. Fla. 41 385; So. 509; Lee, L. R. A. Walker v. (NS) Fla. 40 So. 881. (cid:127)356 defendants set their an- answering sought up Woodward, swer a parol agreement with M. L. which they allege wаs “ratified and all the approved by mortgagees.” By law, under contract seal could not common modified abrogated or subsequent agreement by a unless same was also under seal. 6 C.R. L. 915. In line with rule, common law this Court has held that an instrument un- der seal cannot be aby modified subsequent executory parol Kurtz, contract. Tischler Fla. 661. So. Ap- pellants recognize rule, but bar, insist that in the case at the terms and conditions of the mortgage were superseded and abrogated by parol agreement, because it had been executed parties thereto.
notes Levi, and M. Woodward or Plus acting L. R. them, entered parol for mortgagors into with the effect and profits rents derived from the be apartment were taken in lieu house of all payments on the mortgage due and to become due debt involved in this Levi litigation, or Mrs. and Mrs. Woodward ever cir- agreement. authorized or ratifiеd Under the any such cumstances, equities the chancellor decreed correctly complainants. with here, assignment argued one other error is and Only finding and decree of the questions propriety sum and interest complainants principal amount due ap- the contention of that the appellants thereon. It is possession mortgaged in mortgagees pellees account bound keep therefore strict premises аnd were n ofthe had for accounted they and until profits, rents a decree. entitled to they were not profits rents and a contention. basis for such furnishes no evidence The that M. L. Woodward was for inference is room There disburse rents and mortgagors collect agent of the same, evidence to find anything but unable we are mort- that the holders of the statement support will' covered property were in suit gage mortgage. the said lower is affirmed. court decree cause record -been having in this Per Curiam. —The considered, pre- Court, foregoing opinion adopted by Acts of Chapter under pared considered, ordered, ad- opinion, as its Court be, decree of the below Court court judged by affirmed. hereby same is and the Buford,-C. J., J., concur. Whitfield J. Terrell, J., dissent. Ellis Brown, J., disqualified. Re-hearing Granted. cause on the original decided Per CuRiAM.-^This. two dissenting with from the con- hearing Justices
admitted the of notes interposed parole defense the foreclosure but as to entered agreement parties maturity which the by into under of notes and extended and which mortgage was Woodward, L. original mortgagee, possession M. took premises with the to mortgaged right collect profits therefrom apply rents and same the pay- to up-keep, of the taxes on the senior ment the interest mortgage, junior and when said amounts were paid applied payment the balance to be of principal of the senior until and then paid payment of principal junior until paid. It agreement also said profits rents applied taken and in lieu of all due and payments so were become due on premises said mortgagee pursuant delivered thereto and that into said under possession premises mortgagee went thereunder large and collected sums which аgreement said been accounted for. have not complainants amended the chancellor the permission By any complaint allege bill of their the parties it was entered was into foregoing took charge breached and abandoned the defendants who premises. and are A demurrer now in filed their amended bill was overruled and defendants de- answer A final denying agreement. the breach for complainants present cree entered appeal