Evans v. Tucker

• Decision Date: 28 May 1931
• Citation: 135 So. 305,101 Fla. 688
• Parties: EVANS v. TUCKER et al.
• Court: Florida Supreme Court

135 So. 305

101 Fla. 688

EVANS v. TUCKER et al.

Florida Supreme Court

May 28, 1931

Commissioners' Decision.

Suit by Eppie Evans against McKendree Tucker, individually, and as executor of the estate of Eppes Tucker, Sr., deceased, and others. From an order granting motion of defendant Commonwealth Life Insurance Company to open and set aside a decree pro confesso entered against it and from an order overruling complainant's exceptions to certain paragraphs of the answer of the defendant last-named, complainant appeals.

Orders affirmed. Appeal from Circuit Court, Polk County; Harry G. Taylor, judge.

COUNSEL

Evan Evans, of Jacksonville, for appellant.

Callaway & Burruss, of Corpus Christi, Tex., for appellees.

OPINION

ANDREWS C.

This cause is here for review upon appeal from an interlocutory order of the circuit court of Polk county.

Only two questions are presented for review; First, the order granting the motion of defendant Commonwealth Life Insurance Company to open and set aside a decree pro confesso entered against it; and second, the overruling of complainant's exceptions to the fourth and seventh paragraphs of the answer of the defendant Commonwealth Life Insurance Company.

The transcript shows that the bill of complaint was filed October 29, 1928; that process was served upon Commonwealth Life Insurance Company on November 21, 1928, pursuant to which appearance was duly entered December 3, 1928; that a decree pro confesso was entered against said company on January 29 1929, for failure to plead at the January rules; that on February 7, 1929, appellee company filed its motion to set aside the decree pro confesso and therewith tendering a proposed answer supported by affidavit, which motion was heard February 12, 1929, and pending a decision thereon, a trial term of the circuit court intervened, and the order was not entered until May 14, 1929, setting aside said decree pro confesso and permitting the filing of the answer so tendered that exceptions to paragraphs 4 and 7 of said answer were filed May 22, 1929, and overruled by the court July 30, 1929.

Reverting first to the question presented by the action of the trial court in setting aside the decree pro confesso, it appears that it had been entered seven days when the motion was made to set it aside. The defendant having filed its motion within twenty days of the entry of the decree pro confesso, the said order had not become absolute under the rules and statutes; Equity Rule 45; sections 4939 and 4945, Compiled General Laws of Florida 1927. The fact that the order on the motion was not made and entered within twenty days due to no fault of the defendant could not adversely affect defendant's rights.

In the case of Johnson v. Johnson, 91 Fla. 275, 107 So. 342, 343, it was held that: 'The setting aside of a decree pro confesso on motion or petition before the same becomes absolute should be distinguished from vacating or setting aside the final decree rendered upon the bill so taken as confessed, as provided for in section 3158 of Rev. Gen. Stats. of 1920 [now Section 4945, Comp. Gen. Laws of Florida, 1927], although many of the rules applicable to the one are applicable to the other. 21 C.J. 793.' It was also there held that the court's discretion in granting or refusing a motion to set aside a decree pro confesso will not be disturbed or reversed by this court unless gross abuse of such discretion is made to appear. See also Strickland v. Jewell, 80 Fla. 221, 85 So. 670. As a matter of fact, an interlocutory order in a suit remains within the control of the chancellor until the entry of final decree, in the absence of intervening and effective appellate jurisdiction. Mitchell v. Mason, 90 Fla. 201, 106 So. 430; Johnson v. Johnson, supra; 21 C.J. 793. However, to entitle a defendant to an order of the court opening a final decree, he must show not only reasonable diligence, but a meritorious defense, which should be in the form of a proposed answer and exhibited to the court at the time of making the application. People's Realty Co. v. Southern Colonization Co., 78 Fla. 628, 83 So. 527; Clarke v. Knight, 86 Fla. 491, 98 So. 358; Sutton v. Zewadski, 70 Fla. 379, 70 So. 433; Strickland v. Jewell, supra.

As to the question whether or not the answer presented a meritorious defense, it appears that it was tested later by the exceptions filed by complainant to paragraphs 4, 5, and 7 of the proposed answer, and to adjudicate their merits necessarily determines the question as to the correctness of the order overruling exceptions of complainant to grounds four and seven of the said answer.

The purpose of the bill of complaint is to set aside a subrogation agreement executed by the executor whereby the first mortgage executed by Pipkin and wife to decedent is subrogated to a second mortgage executed by them to the Commonwealth Life Insurance Company.

The bill alleges that D. P. Pipkin and wife executed as a part of the purchase price of lots 7 and 8, block 17, of West Lakeland, a mortgage to Eppes Tucker, Sr., to cover the two named lots for $74,000. The mortgagee died March 1, 1926, and McKindree Tucker, one of the heirs, also one of the defendants in this suit, was named executor of his father's estate in the will and he duly qualified and was acting when this suit was brought. It appears that the north 48 feet of lot 8 was released from the terms of the mortgage on October 7, 1926, to which no point appears to be raised on this appeal.

On October 29, 1927, defendants D. M. Pipkin and wife executed a second mortgage for $12,500 covering said lots 7 and 8, less the north 48 feet of lot 8, to the Commonwealth Life Insurance Company, which mortgage was duly recorded on November 3, 1927; that on November 2, 1927, McKindree Tucker, executor of the estate, executed and delivered to said, company a subrogation agreement the terms of which provided that the first mortgage held by the Tucker estate would be subrogated to the mortgage held by the said insurance company which was recorded November 7, 1927; that at the time of the execution of said second mortgage by the said mortgagors, there was due to the Tucker estate on their first mortgage about $35,000; and that at the time of bringing this suit there was due the estate about $21,000. The first mortgage had therefore been reduced from $74,000 to $21,000.

The bill alleges that said subrogation agreement is void, as the executor was without authority under the will to execute said agreement; that the security under the first mortgage was thereby greatly impaired, past due and unpaid; that as foreclosure of the first mortgage will be subject to the pretended lien of the said second mortgage, complainant will be thereby greatly injured in her rights as an heir to her one-sixth share under the will.

While the point is not raised, it appears that the contract is signed by 'M. Tucker, (Seal) Executor of Estate of Eppes Tucker, Sr.,' and not as Executor, etc. Under such condition the executor would be personally liable in the event of waste, fraud, or bad faith, even though the will or the statutes conferred authority to make such a contract. See Higgins v. Driggs, 21 Fla. 103; Clonts v. Cline (Fla.) 131 So. 321; Branch v. Branch, 6 Fla. 314.

Grounds 4 and 7 of the answer of said insurance company allege in substance that no money was transferred under its second mortgage until after the execution of the subrogation agreement, when it paid out the following sums for the purposes and to the parties named:

'To J. E. Melton, for fire and tornado insurance on the property described in both mortgages, the sum of $101.36.

'To the City of Lakeland for taxes and assessments on said property, $1,350.69.

'To McKendree Tucker, as Executor of the Estate of Eppes Tucker, $10,232.82.

'For State and County taxes on the property described in both mortgages the sum of $336.13.

'The balance to make up the sum of $12,500.00 was disbursed to pay the cost of making said loan, including commissions, attorney's fee and life insurance premiums on life insurance carried for the benefit and for the security of said mortgage.

'This Defendant further says that at the time it furnished the money on the mortgage which it took, taxes on the property described therein were delinquent, and the said D. M. Pipkin, and his wife, Sarah C. Pipkin, were unable to pay the same and the said Pipkin and wife had no funds with which to pay any of the interest or principal due upon the mortgage belonging to the said estate, and that these facts were well known to the Executor of the said Estate, and it was well known to the said Executor and to the said Pipkin and wife that the sole inducement for the acceptance of the Mortgage made by Pipkin and wife to this defendant was the execution and delivery of the subordination agreement by the said executor and that it was well known to all the parties to said transaction including the said Pipkin and wife, the said McKendree Tucker and this Defendant, that the Mortgage made to this Defendant was in reality made for the benefit of the Estate of Eppes

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