Ballard v. Kennedy

• Decision Date: 13 November 1894
• Citation: 16 So. 327,34 Fla. 483
• Parties: BALLARD, Sheriff, et al. v. KENNEDY.
• Court: Florida Supreme Court

16 So. 327

34 Fla. 483

BALLARD, Sheriff, et al. v. KENNEDY.

Florida Supreme Court

November 13, 1894

Appeal from circuit court, Polk county; G. A. Hanson, Judge.

Bill by Jacob L. Kennedy against Hiram D. Ballard, as sheriff and ex officio administrator of Nancy Gilbert, deceased, and others to foreclose two mortgages. Decree for complainant, and defendants appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. In Merritt v. Daffin, 24 Fla. 320, 4 So. 806, this court, passing upon the effect that our statute making the realty of a decedent assets in the hands of his executor or administrator had upon the question of parties to suits for the foreclosure of mortgages made by the decedent in his lifetime, held that the heir at law of such decedent was not a necessary party to a suit for the foreclosure of a mortgage upon the realty of the estate, and that, notwithstanding the heir was not a party to such foreclosure proceedings, he was concluded by the foreclosure decree and sale. We now hold that even as the law then stood, though the heir was not a necessary party, yet he was not an improper party, to such foreclosure proceedings, in the event the complainant saw proper to make him a party defendant.

2. Where the heirs at law of a deceased mortgagor have been made parties defendant, along with the administrator of the decedent, to a bill for foreclosure of a mortgage upon the lands of the deceased, and have had their pleadings to such bill stricken out, and the bill is subsequently dismissed as to them, but is carried into final decree against the administrator alone, such heirs at law are so affected by such final decree, under the ruling in Merritt v. Daffin supra, as to give them the right to an appeal from such final decree, though they are not named as parties thereto.

3. In order to entitle any one to a writ of error or appeal to reverse a judgment or decree, he must have been a party or privy to the record, or must be prejudiced or injured by the judgment or decree, so that he is to receive benefit and advantage by the reversal thereof. Writ of error or appeal can only be taken by him who would have had the thing if the erroneous judgment had not been given.

4. An answer to a bill in equity, unless the verification thereof be waived, must be sworn to by the defendant whose answer it purports to be; and when a joint, or joint and several answer is interposed on behalf of several defendants, it can be considered and treated as the answer only of those of the defendants who sign and verify it by oath.

5. Equally strict is the rule that requires an answer to be signed by the defendant whose answer it purports to be. Such signing is necessary even where the oath thereto has been waived. If the answer lacks either the requisite signing or verification, it is proper to strike it from the files on motion as being no answer at all, unless the absent requisite has been waived.

6. Where a defendant, however, subscribes his name to the affidavit appended to and verifying his answer, that is a sufficient signing thereof.

7. Cross bills should be filed either at the same time that the answer to the original bill is filed or subsequently thereto but never before the complainant in the cross bill has answered the original bill; and, if filed before such answer, it is proper, on motion, to strike it from the files.

8. The dismissal of an original bill carries with it and disposes of a cross bill thereto, when such cross bill sets up matters only that are purely defensive to the original bill, and prays for no affirmative relief; but where the cross bill sets up, as it may, additional facts, relating to the subject-matter, not alleged in the original bill, and prays for affirmative relief in the case thus made against the plaintiff in the original bill, the dismissal of the original bill does not dispose of the cross bill, but it remains for disposition in the same manner as if it had been an original bill.

9. When default in pleading has been made, the clerk of the circuit court, without some special authority from the court, has no power to enter a decree pro confesso at any other time than upon a rule day.

COUNSEL

Frank Clark and J. W. Brady, for appellants.

Crosier & McDermott, for appellee.

OPINION

TAYLOR J.

Jacob L. Kennedy, the appellee, filed his bill in equity in the circuit court of Polk county for the foreclosure of two mortgages made by Nancy Gilbert, deceased, during her lifetime. The first of said mortgages was given to secure a note for $4,753.98, made directly to Jacob L. Kennedy himself; the second, made to one D. Hughes, to secure a note for $693.15, that covered a portion of the same property included in the mortgage to Kennedy, and that, the bill alleges, was assigned and transferred for a good and valuable consideration to Kennedy by Hughes. The complainant filed his bill against the defendant Ballard, as sheriff and ex officio administrator of Nancy Gilbert, deceased, and also against Emily C. Hardaway, Emma Gilbert Cloud, Annie G. Deemer, Volney Terril Gilbert, a minor, Meta D. Gilbert, Warren P. Gilbert, Hugh McM. Gilbert, Angeoline Davis, and Annelli Gilbert, a minor, as the heirs at law of Nancy Gilbert, deceased. All the defendants were nonresidents of Florida, except Ballard, the sheriff administrator. Order for publication requiring the nonresident defendants to appear and answer was made. The defendants all appeared by counsel, and all of them, including Ballard, the administrator, and the two minors, filed a demurrer to the bill, assigning 13 grounds of demurrer thereto, all of which are frivolous and without merit, and require no further notice at our hands. This demurrer was overruled, upon which all of said defendants filed a joint and several answer that sets up, in substance, the following defense: They admit that Nancy Gilbert executed the two notes and mortgages for the amounts alleged in the bill, but aver that she was old and infirm, and not possessed of her full mental faculties; that Jacob L. Kennedy is the sonin-law of said Nancy Gilbert, and lived with and was supported by her, and had, in a large measure, the management of her business affairs and property; that he had acquired great influence over her; that the said Kennedy had no property or means except such as he derived from her; that the said mortgage made by her directly to said Kennedy was wholly without any consideration whatever; that, knowing the infirmities of the said Nancy Gilbert, he willfully abused the confidence she placed in him, and by chicanery and fraud induced her to sign and execute the said note and mortgage first described in the bill, in order to absorb her estate at her death, with the deliberate intention to defraud the other heirs; and that neither the said Nancy Gilbert nor any of them ever received any benefit therefrom, and that no consideration was ever given or paid therefor by the complainant, or by any one for him.

As to the second mortgage, they answer and say that it was made to the said D. Hughes, at the instance of the said Kennedy, for purposes of his own and for his own benefit, and not for the benefit of the said Nancy Gilbert, and that, after it was paid off with the money of the said Nancy to the said D. Hughes, the said Kennedy had it transferred to himself, instead of having it canceled, as he should have done, for the purpose of holding it as an incumbrance against the estate after her death, and that the same is wholly without consideration as to the said Nancy and the defendants; that the said Kennedy is and has been wholly without means and with no income, and that he has lived for years upon the bounty of his said mother-in-law; and that whatever sums of money he may have ostensibly loaned to her in the presence of others were simply advances on her assets in his hands, advanced her in this way with the design upon his part to claim them as loans in the future, and thereby defraud the estate after her death. This answer, though purporting to be the joint and several answer of all the defendants named in the bill, is sworn and subscribed to by the defendant Angeoline F. Davis alone, but she swears positively to the facts therein averred.

Frank Clark was appointed, by an order in the cause, to be the guardian ad litem to defend the same for the two minor defendants, Volney Terril Gilbert and Annelli Gilbert, and for them he, as such guardian ad litem, filed, without verification, a brief submission of their rights and interests in the cause to the consideration and protection of the court, demanding therein strict proof of the matters alleged in the bill. On the 22d of March, 1890, the complainant moved the court to strike from the files the said joint and several answer filed by all of the defendants, upon the grounds: (1) Because the same is not sworn to by the said defendants, or either of them; (2) because said answer is not signed by said defendants, or either of them; (3) because said defendants Volney Terril Gilbert and Annelli Gilbert are minors, and can only answer by guardian ad litem, while this answer purports to have been made by them in person, as though they were adults. The court granted this motion on the same day.

The same defendants--all joining therein--also filed a cross bill against Kennedy, setting up the same matters therein that were set up in their answer, and prayed therein that said mortgages sought to be foreclosed by Kennedy's bill might be set aside and declared void as against them, as a cloud upon the title of the land of said estate, and that the said two mortgages might be delivered up to be canceled. Hiram D Ballard, as administrator of the estate, also filed a separate answer, in which he sets up the same defense to said ...