Bennett v. Senn

• Decision Date: 09 August 1932
• Citation: 144 So. 840,106 Fla. 446
• Parties: BENNETT et al. v. SENN.
• Court: Florida Supreme Court

144 So. 840

106 Fla. 446

BENNETT et al. v. SENN.

Florida Supreme Court

August 9, 1932

Rehearing Granted Sept. 27, 1932.

Decree Reaffirmed Nov. 4, 1932.

Commissioners' Decision.

Suit by Frank J. Senn against Julia Dillon Bennett, formerly Julia Dillon, individually and as executrix of the estate of J. T Dillon, deceased, and others. From the decree, defendants appeal.

Affirmed.

ELLIS and BROWN, JJ., dissenting. Appeal from Circuit Court, Polk County; Harry G. Taylor, judge.

COUNSEL

G. P Garrett, of Orlando, for appellants.

Huffaker & Edwards, of Bartow, for appellee.

OPINION

DAVIS C.

The appellee, whom we will refer to as complainant, filed his bill in the circuit court of Polk county for the foreclosure of a real estate mortgage executed by the appellants, whom we will refer to as defendants. The mortgage by Julia Dillon unmarried, individually, and as executrix of the estate of J. T. Dillon, deceased, and Rosa Dillon, widow of J. T. Dillon, deceased, was given on March 12, 1928, for the purpose of securing the payment of a promissory note in the sum of $6,500 made by one J. T. Dillon and the said Rosa Dillon on the 5th day of November, 1925, and payable to complainant, or order, eighteen months after date.

It is alleged in the bill that the maturity of the said note was extended by agreement of complainant until December 30, 1930, and that the mortgagors covenanted and agreed to pay said note. The mortgage, a copy of which was attached to and made a part of the bill contained the following agreement: 'The time of payment of the balance due on the principal of said note is hereby extended to March 12th, 1929'--and the mortgagors covenanted and agreed in and by said mortgage, 'to pay all and singular the principal and interest and other sums of money payable by virtue of said promissory note and this mortgage deed, or either, promptly on the days respectively the same shall severally become due.' A joint and several answer was filed by the said defendants, but this answer was demurred to, and the demurrer was sustained with leave to plead further as advised within fifteen days from the making of the order. Upon their failure to file other pleadings in pursuance of the terms of said order, the court entered a decree pro confesso against the said defendants, and the cause proceeded ex parte to a final decree. Upon the coming in of the special master's report of sale and an application for confirmation of the same, the court took testimony of certain witnesses as to the value of the property involved in the litigation. At the conclusion of the testimony, defendants, by their solicitor, stated that they had 'no objection to the foreclosure sale, or a confirmation of such sale,' but they objected to the entry of a deficiency judgment in the cause. The court thereupon decreed that the said report be confirmed and that complainant 'have and recover of and from the defendants, Julia Dillon Bennett, formerly Julia Dillon, and Rosa Dillon, a widow, the sum of Three Thousand ($3,000.00) with interest thereon,' from the date of the decree, and that complainant have execution therefor. From this last decree the defendants entered their appeal to this court, and have assigned as error the sustaining of the demurrer to the answer filed by the defendants and the entry of a deficiency decree against the said defendants Rosa Dillon and Julia Dillon Bennett.

The assignment of error directed at the ruling of the court on the demurrer to the answer of defendants has not been argued here by the appellants, and will therefore be treated as abandoned.

Appellants, in behalf of their contention that the chancellor was not justified in entering the deficiency decree, argue that the record shows that there had been no consideration to the mortgagors, or any other person, for the execution of the mortgage, and, in consequence thereof, it was not valid, and no foreclosure thereof should have been decreed. In support of this position, it is contended that the note was void as to Rosa Dillon, the wife of J. T. Dillon, she being a married woman; that the will of J. T. Dillon was probated in Ohio, executrix was appointed to manage estate, and notice was given to creditors to file claims; that time for filing claims had expired without complainant having filed his claim and that the note as a basis for a claim against J. T. Dillon, became worthless, and, being worthless as against the said estate, and void as to Rosa Dillon, an extension of the time of payment did not constitute a good consideration for the execution and delivery of the mortgage; that, the mortgage being invalid because of lack of consideration, complainant had no right to sue on it, and that there was no obligation on said defendants, by reason of the covenant in the mortgage, to pay the note. It is said in the brief of appellants:

'The answer setting up the facts necessary to apprise the Court of the lack of consideration for the covenant and mortgage, and of the invalidity of the mortgage itself for want of consideration, was on file before the Court when he entered his deficiency decree. The complainant had demurred to the answer, which meant that the complainant had admitted the facts in the answer to be true. The Court had sustained the demurrer to this answer, which meant that the Court held that, even admitting the facts stated in the answer to be true, the answer did not constitute a defense. The Court erred in sustaining the demurrer to said answer. But the question now before the Court on our notice of entry of appeal (T. 61), is merely whether the Court erred in entering a deficiency decree. The deficiency decree was entered in the face of the allegations of the answer. True the answer had been demurred out. Nevertheless the only basis for permitting the answer to be demurred out was to assume the truth of the answer. For all subsequent purposes in the suit the answer must be assumed to be true. In view of the facts made known to the Court by the answer, the Court below erred in entering a deficiency decree against the defendant Rosa Dillon and against the defendant Julia Dillon Bennett, individually.'

The fallacy of this argument is apparent when we are reminded that the demurrer to the answer was sustained. This left the record, in so far as the questions involved here are concerned, in the same shape as it would have been if no answer had been filed. When the demurrer was sustained, the facts alleged in the answer dropped out of the case. The admissions made by the demurrer were only for the purpose of passing upon the sufficiency in law of the answer, and were not binding upon the...