Bank of Wildwood v. Kerl

• Decision Date: 09 June 1939
• Citation: 138 Fla. 527,189 So. 866
• Parties: BANK OF WILDWOOD v. KERL et al.
• Court: Florida Supreme Court

189 So. 866

138 Fla. 527

BANK OF WILDWOOD v. KERL et al.

Florida Supreme Court

June 9, 1939

Rehearing Denied July 1, 1939.

Suit by the Bank of Wildwood against Harry L. Kerl and another to foreclose a mortgage on real estate. From an order denying plaintiff's motion to strike certain portions of defendants' answer, plaintiff appeals.

Order affirmed and cause remanded. Appeal from Circuit Court, Sumter County; J. C B. Koonce, judge.

COUNSEL

H. C Collins, of Leesburg, for appellant.

P. C Gorman, of Leesburg, for appellees.

OPINION

BROWN Justice.

Plaintiff filed its bill in the Circuit Court for Sumter County for the foreclosure of a mortgage on certain lands lying within said County, which mortgage was executed by Harry L. Kerl and A. L. Miller and their respective wives. The bill of complaint alleges that the defendants, being indebted to plaintiff, executed and delivered to it on the 23d day of November, 1926, a note in the sum of $1,100, due and payable November 23, 1929, and also executed and delivered to the plaintiff a mortgage securing said note, a copy of the note and the mortgage being attached to the bill and made a part thereof. The copy of the note so attached shows that it is not under seal.

Among other things the mortgage describes the note and bears these provisions:

'And the said Mortagors for them and their heirs, legal representatives and assigns, hereby covenant and agree:

'1. To pay all and singular the principal and interest and other sums of money payable by virtue of said promissory notes and this deed, or either, promptly on the days respectively the same severally come due.

'3. To pay all and singular the costs, charges and expenses, including lawyer's fees, reasonably incurred or paid at any time by said Mortgagee, its successors, legal representatives or assigns, because of the failure on the part of the said Mortgagors, their heirs, legal representatives or assigns, to perform, comply with and abide by each and every the stipulations, agreements, conditions and covenants of said promissory notes and this deed, or either, and every such payment shall bear interest from date at the rate of Eight per cent. per annum.'

The bill also alleges that two small payments were made on the principal of the note by Kerl and Miller in 1930 and 1931. To this bill of complaint, A. L. Miller filed his answer, the pertinent parts of which are contained in paragraph 7:

'And for further answer to each and every allegation of the bill of complaint, and as to any application made in this cause for a deficiency judgment for costs or otherwise against this defendant, this defendant says:

'(a) That the alleged cause of action did not accrue within five years before this suit.

'(b) That the alleged cause of action did not accrue within five years before this suit, and this defendant, did not at any time make any payment whatsoever to the plaintiff, and did not authorize anyone to make a voluntary payment, or otherwise, for him; that although the bill of complaint was filed in this cause on July 27, 1932, and summons on that date issued, said summons was never delivered to the proper officer to be served; that alias summons was issued on March 3, 1936, and delivered to the proper officer for service, which was more than five years after the alleged cause of action accrued; that this defendant has not at any time since November 23, 1929, acknowledged any indebtedness to the plaintiff, or authorized anyone to do so for him, nor has this defendant since November 23, 1929, voluntarily paid either principal or interest of said mortgage note, nor authorized anyone to do so in his behalf, and that the alleged cause of action of the plaintiff, insofar as the plaintiff is entitled to a deficiency judgment against this defendant, for either principal or interest, has not accrued within five years before this suit.'

Plaintiff thereupon made a motion to strike the above sub-paragraphs, and the court in denying the motion stated:

'The court finds as a matter of law that the covenant of the said defendant, to-wit: 'To pay all and singular the principal, and interest, and other sums of money payable by virtue of said promissory notes, and this deed, or either, promptly on the days respectively the same severally come due' contained in the mortgage sought to be foreclosed herein, is not such a covenant that would be a basis for an action at law for damages from the breach thereof, if the facts alleged in said sub-paragraphs are true and that consequently if the facts alleged in said sub-paragraphs are true this Court would have no authority to enter a deficiency decree against the said A. L. Miller in case the property involved does not sell for a sufficient sum to pay the amount due the Mortgagee.'

Plaintiff entered its appeal from this order. The mortgage was under seal and the note was not.

It is contended by appellant that there are two separate and distinct promises to pay the debt, one contained in the note and the other in the mortgage, each promise being entirely independent of the other. Therefore he words his first question thus: 'Where there are two separate and independent promises to pay a debt, each controlled by a different period of limitation, which period should prevail in an action brought upon the promise governed by the longer period of limitation?'

The quoted question thus framed assumes the existence of one element of the problem which the lower court has decided does not exist, as the Circuit Judge's order (above quoted) shows clearly that he was of the opinion that the covenant in the mortgage 'is not such a...