KATHERINE N. DEASON, A WIDOW, APPELLANT,
v.
EVA DEITZ, BY AND THROUGH HER HUSBAND AND NEXT FRIEND, EMANUEL DEITZ AND ABE KURMAN, APPELLEES
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The Florida Supreme Court affirmed an interlocutory order overruling a demurrer to an amended cross-bill in a mortgage foreclosure case. The court found the cross-bill insufficient to establish defenses against the assignees of the mortgage and notes.
No, the amended cross-bill was insufficient because it failed to demonstrate that the assignees did not take the mortgage and notes free from the alleged equities and defenses the mortgagor could have asserted against the original mortgagee.
“The amended cross bill was insufficient to show that, even if the allegations thereof were otherwise good as setting up a cause of action warranting rescission against the original mortgagee and holder of the note, that the complainants in this case, as assignees and endorsees of the mortgage and notes, did not take the same free from all the alleged equities and defenses which the mortgagor could have set up against the mortgage before its assignment.”
This quote explains the core deficiency of the cross-bill in relation to the assignees' rights.
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Join FLexlaw to unlock all legal intelligenceThe principal suit involved the foreclosure of a mortgage by complainants who were assignees of the mortgage and holders of the promissory notes. The …
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This is an appeal from an interlocutory order overruling a demurrer to an amended cross bill. The principal suit was for foreclosure of a mortgage. The complainants seeking foreclosure sued as assignees of the mortgage and as endorsee for value before maturity of the two negotiable promissory notes the mortgage was given to secure.
The amended cross bill was insufficient to show that, even if the allegations thereof were otherwise good as setting up a cause of action warranting rescission against the original mortgagee and holder of the note, that the complainants in this case, as assignees and endorsees of the mortgage and notes, did not take the same free from all the alleged equities and defenses which the mortgagor could have set up against the mortgage before its assignment.
The decree appealed from should be affirmed on the authority of Pensacola State Bank v. McClure, 67 Fla. 289, 64 Sou. Rep. 1022; McClure v. American National Bank, 67 Fla. 32, 64 Sou. Rep. 427, and it is so ordered.
Affirmed.
Whitfield, P.J., and Terrell and Davis, J.J., concur.
Ellis, J., concurs in the opinion and judgment.
Piled under Rule 21 A.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- McClure v. Am. Nat'l Bank of Pensacola, 67 Fla. 32 (Fla. 1914)
- Pensacola State Bank v. McClure, 67 Fla. 289 (Fla. 1914)