HENRY H. CHAPPELL, MARY WHEELER CHAPPELL, J. HARGRAVES AND MINNIE HARGRAVES, APPELLANTS,
v.
REALTY TRUST COMPANY, A CORPORATION, S. O. CHASE, ALFRED FOSTER, ALFRED FOSTER, AGENT, CHASE & COMPANY, A CORPORATION, AND FIRST NATIONAL BANK OF SANFORD, A CORPORATION, APPELLEES
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The Florida Supreme Court affirmed a lower court's decision to overrule a demurrer in a foreclosure proceeding, finding the bill of complaint sufficiently stated grounds for foreclosure.
Yes, the demurrer was properly overruled because the bill of complaint sufficiently alleged non-payment of interest, which is a ground for foreclosure, and presented no other grounds for lack of equity.
“While the bill of complaint alleges that interest “due upon the note and mortgage * * * has not been paid, [*116] and that no part thereof has been paid,” this allegation and others like it, in view of the entire case made by the bill, must be taken to mean that interest due on the indebtedness has not been paid; and in this view of the bill of complaint the demurrer thereto was properly overruled, there being no grounds' of the demurrer sufficient to show lack of equity to foreclose.”
This quote explains the court's interpretation of the non-payment allegation and the basis for affirming the lower court's decision.
Appellants appealed a foreclosure proceeding where a note and mortgage were executed to cover existing debts and future advances. The mortgage was set…
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Per Curiam.
— In foreclosure proceedings it appears that a note and mortgage were executed for a stated amount designed, .as shown by a declaration of trust concurrently executed, to cover existing debts and future advances. The mortgage was to mature upon failure to pay interest on the indebtedness. A demurrer to the bill of complaint was overruled and the defendants appealed.
While the bill of complaint alleges that interest “due upon the note and mortgage * * * has not been paid, and that no part thereof has been paid,” this allegation and others like it, in view of the entire case made by the bill, must be taken to mean that interest due on the indebtedness has not been paid; and in this view of the bill of complaint the demurrer thereto was properly overruled, there being no grounds' of the demurrer sufficient to show lack of equity to foreclose.
Decree affirmed.
Browne, C. J., and Taylor, Whitfield, Ellis and West, J. J., concur.