ABRAM WOLKOWSKY, APPELLANT,
v.
GUTMAN KIRCHICK, ROSA KIRCHICK AND FLORA A. TYNES, APPELLEES
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In this foreclosure mortgage case on second appeal, the Florida Supreme Court reversed the trial court's decree dismissing the foreclosure action. The defendants claimed a prior agreement extended the mortgage payment due date and waived the insurance covenant, but the court found their evidence insufficient to sustain this affirmative defense.
The court held that the defendants failed to sustain their burden of proving the affirmative defense. The defendants' evidence was equivocal and inadequately corroborated, being directly contradicted by the mortgagee's unequivocal denial, and therefore did not meet the standard of proof required for such defenses.
“This was an affirmative defense and the burden of establishing it by a preponderance of the evidence rested upon the defendants.”
Establishes that defendants bore the burden of proof for their modification and waiver defense
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Join FLexlaw to unlock all legal intelligenceWolkowsky brought suit to foreclose a mortgage on real estate against defendants Kirchick and Tynes. The defendants' answer admitted execution and val…
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West, J.
This is the second appeal of this case to this court. It is a suit to foreclose a mortgage on real estate. The former appeal was from an order overruling exceptions to the answer. This order was affirmed. Wolkowsky v. Kirchick, 81 Fla. 415. The case having been remanded, it proceeded to final hearing upon various stipulations of counsel and testimony taken upon the issues presented. There was a final decree in favor of defendants, from which this appeal is taken.
The answer admits the execution of the mortgage and its validity, but denies that the indebtedness was due and the mortgage foreclosable at the time the suit was instituted. The defense interposed is that prior to the institution of the suit an agreement had been entered into between the mortgagee and mortgagors, by the terms of which the due date of the note was extended to a time later than the institution of the suit, and that the mortgagee had waived the covenant of the mortgagor to insure the premises with loss payable to the mortgagee, and therefore the debt was not due nor was the mortgage foreclosable because of any breach of its conditions by the mortgagors at the time the suit was instituted.
This was an affirmative defense and the burden of establishing it by a preponderance of the evidence rested upon the defendants. American Securities Co. v. Goldsberry, 69 Fla. 104, 67 South. Rep. 862, 1 A. L. R. 15. It is equivocally affirmed by the defendants with slight, if any, corroboration. It is directly and unequivocally denied by the complainant. An examination of the record convinces us that the burden resting upon the defendants has not been sustained. The evidence offered is not of the character required in this class of cases. Where the decree of the chancellor is not supported by the evidence it will be reversed by this court on appeal. Bass v. Alderman, 82 Fla. 490, 90 South. Rep. 378; Florida National Bank v. Sherouse, 80 Fla. 405, 86 South. Rep. 279; Schmitt v. Bethea, 78 Fla. 304, 82 South. Rep. 817; Howard v. Sheffield, 73 Fla. 358, 74 South. Rep. 488.
Reversed.
Taylor, C. J., and Whitfield, Ellis and Browne, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bassett W. Mitchell v. Gertrude Mitchell, 91 Fla. 427 (Fla. 1926)…one year. ’ ’ There is no doubt as to either the existence or the wisdom of the rule that “where the decree of the Chancellor is not supported by, but is contrary to the evidence, it will be reversed by this court on appeal.” Wolkowsky v. Kirchick, 85 Fla. 210; 95 South. Rep. 611. Neither can there be doubt as to either the existence or the wisdom of the converse rule that “the findings of the Chancellor on the evidence will not be disturbed unless such findings of fact aré clearly shown to be erroneous.”…1 / 2
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State v. Couch, 117 Fla. 609 (Fla. 1934)…ted upon the respondent who set up such a defense to establish it by a preponderance of the evidence. See American Securities. Co. v. Goldsberry, 69 Fla. 104, 67 South. Rep. 862; Tyler v. Toph, 51 Fla. 597, 40 South. Rep. 624; Wolkowsky v. Kirchick, 85 Fla. 210, 95 South. Rep. 611; Lonergan v. Peebles, 77 Fla. 188, 81 South. Rep. 514; Baylarian v. Tunnicliffe, 105 Fla. 494, 141 South. Rep. 609; [*612] Bourne v. State Bank of Orlando & Trust Co., 106 Fla. 46, 142 South. Rep. 810; Bacon v. Green, 36 Fla. 325…
Authorities Cited
- The Fla. Nat'l Bank of Gainesville v. Sherouse, 80 Fla. 405 (Fla. 1920)
- Phifer v. Abbott, 73 Fla. 402 (Fla. 1917)
- August Schmitt v. Bethea, 78 Fla. 304 (Fla. 1919)
- Am. Sec. Co. v. Goldsberry, 69 Fla. 104 (Fla. 1915)
- Oscar Bass (otherwise known as Rull Bass) v. Alderman, 82 Fla. 490 (Fla. 1921)
- Abram Wolkowsky v. Gutman Kirchick, 81 Fla. 415 (Fla. 1921)