DENISE AZAR, ET VIR,
v.
ALBERT STEINER AND THERESE L. STEINER, AS DOMICILIARY EXECUTORS OF THE ESTATE OF H. S. LIVINGSTON, DECEASED
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The Florida Supreme Court affirmed a foreclosure decree, holding that the mortgagors' defense of payment, based on a release of mortgage, was invalid because the release was erroneously issued for the wrong lots.
No, the defense of payment was not valid because the evidence showed the release was erroneous and did not apply to the lots in question.
“It was shown by uncontradicted evidence that this release was in' error as to the lots involved in the foreclosure and that it had reference to other lots which were included in the mortgage by mistake.”
Establishes the factual basis for invalidating the release.
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Join FLexlaw to unlock all legal intelligenceThe mortgagors claimed payment on a mortgage, presenting a release of mortgage as proof. The mortgagees (plaintiffs) demonstrated that this release wa…
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This appeal is from a final decree foreclosing a mortgage, the defendant having interposed the *749defense of payment. In the final decree, the Chancellor found a balance of $1500 and interest to be due on the mortgage and decreed foreclosure for this amount. Defendants appealed from that decree.
Five questions are argued for reversal but in reality the only question presented is whether or not the plea of payment was proven.
Appellant contends that when the plea of payment was tendered, the burden shifted to the plaintiff to show non payment and an outstanding debt. The general rule would approve that procedure but here nothing was offered in support of the plea of payment but a release of the mortgage. It was shown by uncontradicted evidence that this release was in' error as to the lots involved in the foreclosure and that it had reference to other lots which were included in the mortgage by mistake. When this was shown, the plea of payment lost its efficacy as a defense.
The evidence was ample to show this and to prove the balance found to be due on' the mortgage. In fact the ultimate question in this case was one of construing the evidence. The Chancellor’s decree finds support in the record and no good reason is shown to reverse it.
It is accordingly affirmed.
Affirmed.
Buford and Thomas, J. J., concur. •
Whitfield, P. J., concurs in opinion and judgment.
Justices Brown and Chapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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DFRP Note Purchase P'rs I, LP v. Bruno, 196 So. 3d 576 (Fla. 4th DCA 2016)…gado, 166 So. 3d 857, 859 (Fla. 3d DCA 2015). On the trial of the affirmative defense that the mortgage had been satisfied, the circuit court shall determine whether the document purporting to satisfy the mortgage was in error. See Azar v. Steiner, 142 Fla. 748, 196 So. 293 (1940). “A court may apply equitable principles to reverse the cancellation of a mortgage satisfaction when that satisfaction is the result of mistake or inadvertence.” All Real Estate Title Servs., Inc. v. Minqh Quang Vuu, 67 So. 3d 26…