Phifer v. Abbott, 73 Fla. 402

Phifer v. Abbott

73 Fla. 402 | Fla. | 1917

Shackleford. J.,

(after stating the facts.) This is the third appeal which has come to this court in this case, all of the appeals being from interlocutory orders. Upon the first appeal, Phifer v. Abbott, 68 Fla. 10, 65 South. Rep. 869, the only points decided were that “Upon the death of the mortgagee, his or her executor or administrator is the proper party complainant to' enforce the mortgage lien upon real estate.” ■

“In a suit to enforce a mortgage lien upon real estate, an allegation that the complainant is the sole heir of the deceased mortgagee, and that upon the death of the mortgagee the complainant as sole heir of the mortgagee ‘went into possession of all the property left by her *417mother’ is not sufficient to show a right of the complainant to maintain the suit.”

Upon the second appeal, Phifer v. Abbott, 69 Fla. 162, 67 South. Rep. 917, the only point decided was that “An amendment stating- that a complainant sues technically in a representative capacity and not individually in the same cause of action does not make a new suit or. cause of action; particularly when the complainant is the sole party in interest and the suit is brought for her sole benefit.” This being true, the principle known as the law of the case will prove of practically no assistance to us. -As we held in Florida East Coast Ry. Co. v. Geiger, 66 Fla. 582, 64 South. Rep. 238, “All the points adjudicated by an appellate court upon á writ of error or an appeal become the law of the case, and are no longer open for discussion or consideration, but this principle has no applicability to and is not decisive of points presented upon a second writ of error that were not before the appellate court for adjudication.

“A judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided.”

The point now presented for determination is as to whether or not the court erred in overruling the demurrer on any of the grounds thereof which was interposed to the bill of complaint as finally amended. We have copied such bill and demurrer in the foregoing statement in order that we might have the same fully before us and thereby enable us to make this opinion the more readily intelligible.

It will be observed that- the suit is not brought against the legal representatives of Martha P. Perry, deceased, the mortgagor, and no deficiency decree is sought against her estate. As we held in Hinson v. Gammon, 6i Fla. *418641, 54 South. Rep. 374, 26 Ann. Cas. 83, “When mortgagors have conveyed all their rights and interests in the mortgaged property to other parties, such mortgagors are not necessary parties to a suit to foreclose the mortgage.” In the opinion we' quoted with approval the following excerpt from 2 Jones on Mortgages (6th Ed.) Sec. 1404: “The mortgagor, after he has conveyed the whole of the premises mortgaged is not a necessary party to the suit (foreclosure) ; nor indeed is he a proper party, unless a personal judgment for airy deficiency there may be, after applying the property to the debt, is sought against him.” It is distinctly alleged in the bill that Martha P. Eerry conveyed the mortgaged lands by quit-claim deed tp Sallie J. Perry on the 5th day of January, 1886. ,As the complainant in this suit is not seeking any recovery or relief against the estate of Martha P. Perry, deceased, paragraph 2 of Section 1715 of thq General Statutes'of 1906, upon which the appellant relies, has no applicability. Such paragraph reads as follows: “Actions Against Representatives of Decedents. If a person against whom a suit not relating to' land may be brought, or judgment exists, die, such suit shall not be brought, nor proceedings taken upon such judgment, against his executor or administrator after two'years from the issuance of letters testamentary or of administration. After ten years from the death of any person, his estate shall not be liable for any of his debts unless letters testamentary or of administration shall have been taken outiwithin said ten years.”

As the bill alleges that the mortgage deed was executed on the 4th da}>- of August, 1883, which was filed and recorded on the same day in the public records of Alachua County, and the quit-claim deed to Sallie J. Perry was not executed until the 5th day of January, 1886, it follows as a matter of law that Sallie J. Perry *419took the lands subject to the lien created thereon'by the mortgage. If Sallie J. Perry wished to remove this encumbrance from her title to the lands, it became necessary for her to pay off and discharge this mortgage lien, which she evidently realized, for the bill alleges that she made different payments theihon on divers dates, which are specified, the last of such payments being for the sum of $50.00 on the 9th day of October, 1895. We must now determine whether or not the statute of limitations as prescribed by paragraph 1 of Section 1725 of the General Statutes of 1906, upon which the appellant also relies, applies. This paragraph reads as follows: “Within Twenty Years.—An action upon a judgment or decree of a court of record in the State of Florida, and an action upon any contract, obligation, or liability founded, upon an instrument or writing under seal.” We.have held that this paragraph applies to a mortgage upon lands, which is a written instrument executed under seal. Browne v. Browne, 17 Fla. 607, 35 Amer. Rep. 96, and Jordan v. Sayre, 24 Fla. 1, 3 South. Rep. 329. It is conceded in the briefs of the respective parties that this statutory period of twenty years from the date of the last payment of $5o..oo had not elapsed when this suit was instituted. Did such payment prevent this statute from operating as a bar to this suit ? This question must be answered in the affirmative. See 2 Jones on Mortgages (7th Ed.) Section 1198, and the numerous authorities cited in the notes. As is stated in the text, “A payment by a purchaser from the mortgagor is a binding admission that the land is subject to the mortgage and operates to suspend the running of the statute of limitations against a foreclosure of the mortgage.” Also see McLane v. Allison, 60 Kans. 441, 56 Pac. Rep. 747.

Neither do we think that the bill shows that the com*420plainant was guilty of such laches as to' prevent the successful maintenance of this suit. We are also of the opinion that Sections 1717 and 2517 of the General Statutes of 1906, upon which the appellant also relies, have no applicability. Such sections read as follows:

“1717. Promise to pay debts barred — must be in writing. Every acknowledgment of, or promise to pay a debt barred by the statute of limitations must be in writing- and signed by the party to be charged.

“2517 (1905). Promise to pay another’s debt, etc. — No -action shall be brought whereby to charge any executor or administrator upon any special promise to answer or pay any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements or hereditaments, or of any uncertain interest in or concerning- them, or for any lease thereof for a period longer than one year, or upon any agreement that is not to be performed within the space of one year from the making- thereof, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized.”

Since the payment of $50.00 on the 9th day of October, 1895, by Sallie J. Perry operated to suspend the running of the statute of limitations, as we "have just held, it becomes a matter of no particular moment whether Sallie J. Perry did or did not ever promise in writing to pay the amount of indebtedness secured by the mortgage. It may well be, as is suggested by the appellee *421in her brief, that such allegations in the bill simply served to show why the complainant delayed so long- to bring the suit.

We shall not discuss the effect of the giving of the promissory note for $500.00, as that point is not properly before us for determination. “Upon an appeal from an interlocutory order, the court will not consider whether the prayers of the bill are too broad, provided only it prays for something that is. proper and consequent.” Tampa & Jacksonville Ry. Co. v. Harrison, 55 Fla. 810, 46 South. Rep. 592, and Williams v. Black, decided here at the present term. As we said in L’Engle v. Overstreet, 64 Fla. 339, text 361, 60 South. Rep. 120, “If an equity appears from the allegations of the bill of complaint, defects, if any, • in the prayer do not render the, bill insufficient for appropriate relief.” As we also held in Johns v. Bowden, 68 Fla. 32, 66 South. Rep. 155, “Though the allegations of a bill of complaint be abstract and general and largely in the nature of asserted conclusions, yet if under .the allegations a case entitling the complainant to relief as prayed can be made by appropriate and sufficient evidence, a general demurrer to the bill of complaint should be overruled.”

We have frequently held: “In passing upon a demurrer to the whole bill in a suit in equity, every presumption is against the bill, but it is also true that such a demurrer operates as an admission that all the allegations in the bill which are well pleaded are true, and a demurrer .to the wholej^ill should be overruled if the bill makes any case for equitable relief.” Holt v. Hillman Sutherland Co., 56 Fla. 801, 47 South. Rep. 934.

It necessarily follows that the order appealed from must be affirmed.

*422Browne, C. J. and'Whitfield and Ellis, JJ., concur.

Taylor, J., disqualified.