F. S. LOOMIS AND JESSIE LOOMIS, HIS WIFE, APPELLANTS,
v.
JOHN P. DUBOIS, APPELLEE
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This is a mortgage foreclosure action where the trial court entered a final decree foreclosing the mortgage, but the Supreme Court reversed due to an error in the property description in the decree. The court reversed and remanded for entry of a corrected final decree foreclosing on the property actually identified in the mortgage.
The Court held that while the demurrer order and the striking of answer paragraphs were proper, the final decree contained an error in property description. By mistake or inadvertence, the decree described the lands that defendants were allegedly to convey under the separate agreement rather than the lands described in the original mortgage bill of complaint.
“The burden of proof was therefore upon defendants.”
Establishes that defendants bore the burden of proving their affirmative defenses in the foreclosure action.
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Join FLexlaw to unlock all legal intelligenceF. S. Loomis and Jessie Loomis (as mortgagees/complainants) brought suit to foreclose a mortgage on real estate in Dade County against John P. Dubois …
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West, J.
This is a suit to foreclose a mortgage on real estate located in Dade County. The bill of complaint is in the usual form with certified copy of the mortgage deed attached and made a part thereof. Defendants demurred to the bill and the demurrer was overruled. They then filed an answer, one paragraph of which was, upon motion of counsel for complainant, stricken. Within the time allowed an amendment to the answer was filed setting up the same defensive matter attempted to be set up in the paragraph of the answer previously stricken. Thereafter a master was appointed to take and report the testimony. Upon the coming in of his report final decree was entered foreclosing the mortgage as prayed. Appeal from this decree was taken and errors are assigned upon the orders overruling the demurrer to the bill, granting the motion to strike a paragraph in the defendant’s answer, and entering the final decree.
The first assignment contains no merit. It is mentioned but not argued in the brief of counsel for appellants.
The defensivé matter attempted to be set up in the paragraph of the answer which was stricken is contained in the amendment to the answer filed later, so that if there was error in the order granting the motion to strike,' it cannot be said to have been harmful to defendants.
The defense interposed in the answer was of an affirmative character. The burden of proof was therefore upon defendants. Parsons v. Ramsey, 53 Fla. 1055, 43 South. Rep. 503; Edgerton v. West, 43 Fla. 133, 30 South. Rep. 797; Lakeside Press etc. Co. v. Campbell, 39 Fla. 523, 23 South. Rep. 878. It appears from the record of the evidence that various documents and letters were offered in evidence, none of which are copied in the transcript of the record filed in this Court. "We assume that they were before the Court below upon final hearing. Where it is obvious that only part of the evidence is contained in the transcript of the record the question of whether the decree entered is supported by the proof is not open for consideration by this Court. Acosta v. Gingles, 65 Fla. 507, 62 South. Rep. 582; Webb v. Brown, 63 Fla. 306, 58 South. Rep. 27; Jacksonville, Tampa etc. Ry. v. Neff, 36 Fla. 584, 18 South. Rep. 765; Pickett v. Bryan, 34 Fla. 38, 15 South. Rep. 681.
From the averments of the answer and the evidence it appears that prior to the institution of the suit something in the way of an agreement was entered into between the parties by which payment of the indebtedness was to be made part in cash and part by a conveyance from defendants to complainant of certain described lots of land. This agreement was never consummated and the controversy hinges around its terms and conditions and failure of .consummation. In drafting the final decree it appears that by inadvertence or mistake the lands described in the answer, which under this alleged agreement defendants were to convey to complainant, and not the lands described in the bill of complaint and mortgage, were set out. Because of this error in the description of the property the decree will be reversed but with directions that a final decree of foreclosure be entered by the Court below upon the property described in the bill' of complaint and mortgage attached thereto sought to be foreclosed.
Reversed.
Browne, C. J., and Taylor, Whitfield-and Ellis, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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William E. Sapp and his wife v. Warner, 105 Fla. 245 (Fla. 1932)…bar. See 2 Jones on Mortgages (8th Ed.) 666, Section 1187; 41 C. J. 806 et seq. Neither was any such merger, estoppel, payment, satisfaction or discharge of the unrecorded mortgage by the subsequent ones pleaded by defendants. See Loomis v. Dubois, 82 Fla. 293, 89 Sou. Rep. 804. But, it is argued also that the execution by the guardian of a warranty deed to Merrick, without mentioning any [*260] recitals whatsoever therein to show the orders or other proceedings of the County Judge upon which it was base…
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Cent. Hanover Bank & Tr. Co. v. Smith, 134 Fla. 845 (Fla. 1938)…intiff below has clearly established the payment of the notes and mortgage by a preponderance of the evidence. See Meres v. Clayton, 97 Fla. 329, 120 So. 766; Drake Lumber Co. v. Semple, 100 Fla. 1757, 130 So. 577, 75 A. L. R. 687; Loomis v. Dubois, 82 Fla. 293, 89 So. 804; Parsons v. Ramsey, 55 Fla. 658, 45 So. 991. The Chancellor below in the final decree said: ‘‘7. The great preponderance of the evidence establishes and the Court accordingly finds that the Blood note and mortgage were discharged on th…
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Perry v. Farber, 115 Fla. 410 (Fla. 1934)…s reversible error (Miller v. Edwards, 74 Fla. 533, 77 Sou. Rep. 231), unless the defendant has had or can have other portions not stricken, all of the benefits of his stricken defense, in which case the error is rendered harmless. Loomis v. Dubois, 82 Fla. 293, 89 Sou. Rep. 804. The allegations of the answer relating to the item of $3,400.00 were properly stricken and it was not error, for the court to deny the defendant leave to file a second amended answer which was in effect nothing more than a reiter…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lakeside Press & Photo-Engraving Co. v. Campbell, 39 Fla. 523 (Fla. 1897)
- Sallie Acosta v. Gingles, 65 Fla. 507 (Fla. 1913)
- Pickett v. Bryan, 34 Fla. 38 (Fla. 1894)
- Webb v. Brown, 63 Fla. 306 (Fla. 1912)
- Parsons v. Ramsey, 53 Fla. 1055 (Fla. 1907)
- Jacksonville v. Milroy Neff, 36 Fla. 584 (Fla. 1895)
- Edgerton v. West, 43 Fla. 133 (Fla. 1901)