Ackley v. Noggle
| Decision Date | 25 April 1929 |
| Citation | 97 Fla. 640,121 So. 882 |
| Parties | ACKLEY v. NOGGLE et al. |
| Court | Florida Supreme Court |
Error to Circuit Court, Polk County; H. C. Petteway, Judge.
Suit by J. N. Ackley against H. W. Noggle and others. Judgment for defendants, and plaintiff brings error.
Reversed.
Syllabus by the Court
Suit on promise not contained in sealed instrument is properly brought in special assumpsit. Where promise of obligor is not contained in sealed instrument, suit on promise is properly brought in special assumpsit and not in covenant.
Grantee accepting deed containing covenant for assumption of mortgage became primary obligor, and was liable in special assumpsit to mortgagor for amount of debt paid by mortgagor. Where deed contained covenant by grantee assuming and agreeing to pay mortgage on land, grantee by accepting deed became primary obligor and was liable in special assumpsit to mortgagor for amount of mortgage which mortgagor was required to pay.
Summerlin & Wimberly, of Winter Haven, for plaintiff in error.
Huffaker & Edwards, of Bartow, for defendants in error.
In this case Ackley sued Noggle, Kirkpatrick, and Borders in an action of special assumpsit. The facts in short as disclosed by the declaration were that Ackley was indebted to one Frank J. Senn in the sum of $5,000, and Senn held Ackley's note and mortgage securing the same in the sum of $5,000. The mortgage embraced certain lands, the property of Ackley. Ackley sold the lands and conveyed the same to J. Walter Pope, trustee. Pope conveyed the lands to Realty Holding Corporation. Realty Holding Corporation conveyed the lands to Pope Interests, Inc. Pope Interests, Inc., conveyed the lands to H. W. Noggle, L. L. Kirkpatrick, and C. S. Borders. Each of the respective grantees by stipulation in the respective deeds assumed and agreed to pay the debts secured by the original mortgage. The deed from Pope Interests, Inc., to Noggle, Kirkpatrick, and Borders contains the following clause:
It is alleged in the declaration that the $5,000 mortgage referred to in the deed was the mortgage from J. N. Ackley and his wife, Sarah E. Ackley, made on the 20th day of April, 1923, to Frank J. Senn. It is alleged that the defendants failed and refused to pay the said mortgage indebtedness when it became due and payable, and that Ackley was required to pay and did pay the same, and that thereupon the defendants became indebted to Ackley in the aggregate sum of the mortgage indebtedness.
There was a demurrer to the declaration. The demurrer was sustained. The plaintiffs refused to amend the declaration, and final judgment was rendered dismissing the suit, to which judgment writ of error was taken.
It was the contention of the appellees in the court below and in this court that Ackley could only maintain his suit by bill in equity, and the case of Keller v. Ashford, 133 U.S. 610, 10 S.Ct. 494, 33 L.Ed. 667, is relied upon to support that contention.
That case originated in the District of Columbia, and therefore the question of whether or not the action could be maintained at law or only in equity was controlled by the rule applying in that jurisdiction, and may not be relied upon as authority to settle that question in this jurisdiction.
The question as to whether or not, under the facts stated, Ackley may recover in a proper suit against the defendants here, is affirmatively stated by the enunciations in the opinion in the case of Keller v. Ashford, supra.
The promise relied on here is not a promise contained in a sealed instrument executed by the obligor, and therefore the suit is a proper one in special assumpsit and not in covenant....
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