Blair v. Howard

• Decision Date: 11 October 1940
• Citation: 198 So. 80,144 Fla. 421
• Parties: BLAIR v. HOWARD et al.
• Court: Florida Supreme Court

198 So. 80

144 Fla. 421

BLAIR v. HOWARD et al.

Florida Supreme Court, Division A.

October 11, 1940

Suit by Mrs. Alice Blair, as administratrix of the estate of J. H Blair, deceased, against J. S. Howard and another to foreclose a real estate mortgage. From an adverse decree, the plaintiff appeals.

Reversed with directions. Appeal from Circuit Court Union County; A. Z. Adkins, Judge.

COUNSEL

Knight & Knight, of Starke, for appellant.

Joe Hill Williams, of Lake Butler, for appellees.

OPINION

BUFORD Justice.

The appeal brings for review final decree as follows:

'1. That upon the payment by J. S. Howard of all taxes now due upon the lands described in the bill of complaint and payment to the plaintiff of the interest on the note and mortgage sought to be foreclosed, at the rate of six per cent. per annum, from the 26th day of December A.D. 1937 to the 26th day of December, A.D. 1937, to the 26th day of December, A.D. dismissed at the cost of the plaintiff.

'2. That the defendant, J. S. Howard, is hereby allowed thirty (30) days from the date hereof to comply with this Order and Decree.

'3. That if the said defendant, J. S. Howard, does not comply with the terms of this Order and Decree within thirty (30) days from the date hereof, the plaintiff, upon proper showing to the Court of the non-compliance with this Order and Decree on the part of the defendant, J. S. Howard, may apply to the Court for a decree of foreclosure of the mortgage mentioned in the bill of complaint.'

Appellant, who was complainant in the court below, filed suit to foreclose a real estate mortgage to secure payment of note in the sum of one thousand ($1,000) dollars dated December 26, 1928, due one year after date, with interest from date at the rate of ten (10) per cent per annum. The suit was filed on the 15th day of November, 1938. Defendant pleaded in his answer an extension of the maturity of the note. The amended answer alleges:

'These defendants deny each and every the allegations contained in paragraph 4 of the bill of complaint, and allege that the note and mortgage sought to be foreclosed in this cause were, on and prior to the 2nd day of June, 1938, past due and unpaid, and large sums of interest had accumulated thereon, and State and County taxes for several years were also past due and unpaid, and there were outstanding against said property tax sale certificates aggregating large sums of money, which said tax sale certificates so outstanding greatly reduced the value of the property securing said indebtedness. That the defendant J. S. Howard, being then and there in failing circumstances and wholly unable to pay said indebtedness, informed the said Alice Blair, as administratrix of the estate of J. H. Blair, deceased, that he was not able to pay the principal of the mortgage, and unless he could secure a reduction of interest and an extension of time in which to pay the principal of said note, she would have to take the property for said indebtedness, whereupon the said Alice Blair, as administratrix aforesaid, recognizing and agreeing that the value of the lands pledged for the security of the money represented by said note and mortgage was a great deal less than the principal of the mortgage, the interest thereon, and the large amount of taxes due on said land, stated that she did not want the said property, and for the purpose of avoiding taking said property did further agree with the said J. S. Howard that if he would pay the interest then due on said note and mortgage and would pay the taxes and redeem the tax sale certificates, or otherwise clear said land of said taxes, and thereby reestablish its value, she would reduce the rate of interest on said note and mortgage from ten percent to six percent and would extend the time of the payment of the principal sum of said mortgage for

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