73 Fla. 525 | Fla. | 1917
The bill of complaint herein brought by Lottie E. Mahin and W. C. Mahin, her husband, alleges in effect that S. D. Prince and wife executed to W. C. Mahin a mortgage upon described property to secure four notesvexecuted October ist, 1914, by S. D. Prince; that the mortgage was assigned to Lottie E. Teeter, who became Lottie E. Mahin; that the first of the notes is past due and unpaid and the “interest thereon is likewise past due and unpaid, and the defendant, S. D. Prince, has paid no portion of the principal or interest thereon and that the said sums of money due upon said note both for principal and interest have been past due and unpaid for the space of more than thirty days after the maturity thereof, and that under the terms and provisions of said mortgage whereby should any one of the above described notes mentioned herein, or any part thereof, or any part of the interest thereon, remain due and unpaid for the space of thirty days after maturity, then in that event the whole of the balance of the principal sum and interest thereby secured shall thereby become due and.payable at the option of the mortgagee therein, the said complainants
The prayer is for an accounting of the amount due by S. D. Prince to Lottie E. Mahin be made and enforced by foreclosure, and that in the event the proceeds arising from the sale of said property shall prove insufficient to pay off and satisfy the amount due and owing by the said S. D. Prince upon the notes and mortgages mentioned 'herein, that your orators may have a decree of this court vacating and setting aside the deed of conveyance as having been made by the said S. D. Prince and Mrs. C. A. Prince, his wife, to said John R. Thomas and Varina PI. Thomas, his wife, and decreeing the said deed of conveyance to be null and void and of no force and effect as against the indebtedness found to be due and owing by the said S. D. Prince to your orator, Lottie E. Mahin, and that said property is liable to such decree for a deficiency as may be entered in favor of your orator, Lottie E. Mahin, and against the said S. D\ Prince herein.
A demurrer to the bill of complaint was interposed on grounds, among others, that i’t is multifarious as to subject matter and as to parties; that notes 2, 3, 4 and 5 are not due; and that no equity is shown. The Chancellor overruled the demurrer, and the defendants appealed.
Multifariousness goes to convenience more than to merits; and when there is a g-eneral demurrer for want of equity, a ground of demurrer for multifariousness may not avail if there is equity in the bill. Carlton v. Hilliard, 64 Fla. 228, 60 South. Rep. 220.
A demurrer which is addressed to the entire bill must be treated as a general demurrer and should be overruled if there is any equity in the allegations of the bill, even though there are grounds of the demurrer which might prevail if -the same were incorporated in a special demur
Order affirmed.
Browne, C. J., and Taylor, Shackleford and Ellis, JJ., concur. .