23 Fla. 264 | Fla. | 1887
delivered the opinion of the court:
I. The appellee filed a bill of foreclosure of mortgage in the Circuit Court of Hillsborough county, in May, 1886> against the appellants, Allen F. Randall, and his wife, Mary F. Randall, and Orlando Knapp and Clara A. Knapp, his wife. The mortgage, which was executed by appellants to appellee on July 28, 1885, was made to secure the balance of the purchase money agreed to be paid for the land covered by the mortgage, such balance beiug evidenced by two promissory notes signed by each of the appellants.
It was held in Coy, admx., vs. Downie, 14 Fla., 544, a case under the Code of Procedure which was adopted in 1870 and repealed in 1873, that when a mortgage for purchase money is sought to be foreclosed, and the deed of the premises contained covenants, the mortgagor may resist the foreclosure by a recoupment or offset of damages for a breach of covenants to the extent of the damages sustained for a failure or' partial failure of title or any other matters embraced in the covenants. The right .of the mortgagor to make such defence, it is said in the opinion, “ cannot be questioned.” Being a code case it is sufficient to assume the correctness of the decision under that system of court procedure.
~We understand the rule of Chancery to be that where the mortgagor remaius in undisturbed possession of' the land, which he holds under a deed of conveyance with full covenants warranting the title, and no eviction, actual or constructive, is shown, and no insolvency of nor fraud or misrepresentation upon the part of the vendor is alleged, the mortgagor cannot set up such outstanding title, or the
The case of Lowry vs. Hurd, 7 Minn., 356, which holds a different rule under the civil code of that State, recognizes the above as the chancery rule. See, also, 13 Wis., 525; Johnson vs. Gere, 2 Johnson’s Chancery Reports, 546.
II. There is, however, one ground upon which the decree must be reversed. It adjudges that if the moneys arising from the sale of the mortgaged property shall be insufficient to pay the amount due the complainant, “ the defendants, Allen E. Randall, Mary F. Randall, Orlando Knapp and Clara A. Knapp, who are personally liable for the payment of the debt secured by said mortgage, pay to the complainant the amount of such deficiency, and that the com
Is not a decree for any such balance premature, anyhow,, until it has been ascertained, after the sale? Chancery Rule-89, Scott vs. Russ, 21 Fla., 260.
The decree is reversed and remanded for such further proceedings as may be desired and are in conformity to the principle and practice in equity in such eases.