Federal Land Bank of Columbia v. Brooks

• Decision Date: 27 July 1939
• Citation: 190 So. 737,139 Fla. 506
• Parties: FEDERAL LAND BANK OF COLUMBIA v. BROOKS et al.
• Court: Florida Supreme Court

190 So. 737

139 Fla. 506

FEDERAL LAND BANK OF COLUMBIA v. BROOKS et al.

Florida Supreme Court, Division B.

July 27, 1939

Mortgage foreclosure suit by the Federal Land Bank of Columbia against William A. Brooks and others. From an order sustaining objections to the filing of a second amended bill of complaint and dismissing the cause of action, the complainant appeals.

Reversed and cause remanded. Appeal from Circuit Court, Citrus County; Fred L. Stringer, judge.

COUNSEL

Hull Landis & Whitehair and Erskine W. Landis, all of De Land, for appellant.

Thomas Palmer and W. N. Burnside, both of Tampa, and Scofield &amp Scofield, of Inverness, for appellees.

OPINION

BROWN Justice.

William M. Brooks in August, 1918, became indebted to the Federal Land Bank of Columbia in the sum of $5,500. That indebtedness was evidenced by the promissory note of Brooks and his wife.

The note by its terms was made payable on an amortization plan in thirty-four annual installments of $337.50 each, the first installment payable July 1, 1920, the subsequent installments being made payable at the same time in each succeeding year until the mortgage debt should be paid. Any installment in which there was a default should bear interest at the rate of 8 per cent. The Lecanto National Farm Loan Association indorsed the note.

Brooks and his wife, in order to secure the payment of the note executed and delivered to the Federal Land Bank of Columbia a mortgage upon certain lands located in Citrus and Hernando counties. The mortgage was duly recorded in August, 1918. The mortgage contained a covenant that the mortgagors would pay the debt and interest according to the plan prescribed.

Brooks died June 24, 1923, leaving a will, but appointed no executor. Thus neither the probate Act of 1933, c. 16103, nor chapter 10119 of 1925 or chapter 11994 of 1927, apply here. The testator devised all of his property to his widow and children. William A. Brooks, the son, was appointed administrator of the estate with the will annexed.

Seven installments were paid, five of them after the death of the testator and four of them after the appointment of the administrator. No other installments have been paid. The installments of July 1, 1927, and July 1, 1928, were not paid, so on November 24, 1928, the Federal Land Bank of Columbia exhibited its bill in the circuit court for Citrus county to enforce the mortgage lien, making William A. Brooks, individually and as the administrator of the estate of William M. Brooks, Sue G. Brooks, Charlotte E. Brooks Austin, the Lecanto National Farm Loan Association, and several other defendants having or claiming to have some interest in the premises, defendants to the action. Several of the defendants answered averring the ownership by them of claims in the form of statutory liens for services, judgments, and mortgages.

William A. Brooks, individually and as administrator, filed pleas to the bill averring that as administrator he gave notice to all creditors of William M. Brooks, deceased, to present their claims to the administrator within two years, the date of the notice being August 4, 1923; that the notice was published for eight weeks consecutively in a weekly newspaper in Citrus county and proof of the publication was made and filed in the probate court for Citrus county; that the complainant did not file its claim with the administrator or the probate court within two years from date of the notice or at any time thereafter; that the administrator has never paid or caused to be paid any sums of money upon the indebtedness since the death of W. M. Brooks; therefore, the defendant averred, the complainant's claim has become a 'nonclaim and has become barred, lost, forfeited and extinguished and is no longer a valid and binding debt, demand or claim against the estate.'

The defendants Sue G. Brooks, widow, and Charlotte E. Brooks Austin interposed pleas to the same effect.

On the same date the above pleas were filed, February 4, 1929, William A. Brooks, as administrator, filed an answer to the bill admitting most of its material allegations as to the note, mortgage, recordation of the latter, but denied that it is a valid claim against the estate because of the statute of nonclaim, and disclaimed any knowledge of payments upon the debt as alleged and averred in the bill. He also alleged that neither the complainant nor any of the defendants who were alleged to have interests in the premises, by reason of liens, judgments, or mortgages, presented their claims within the two years from the date of the notice, or at any time thereafter.

A demurrer was incorporated in the answer. The answer was also adopted by William A. Brooks individually, Sue G. Brooks, widow, and Charlotte E. Brooks Austin. In a like manner the pleas filed by the administrator were adopted by William A. Brooks individually, Sue G. Brooks, and Charlotte E. Brooks Austin.

Lengthy motions to strike portions of the different answers were filed. Demurrers to such portions of the answers of Brooks, as administrator, seeking affirmative relief in the nature of a cancellation of all claims, were also interposed, and the cause finally came on to be heard upon the sufficiency of the pleas and motions and demurrers on October 3, 1929.

The Chancellor held the pleas to be insufficient, struck certain portions of the answers setting up the defense of nonclaim, and the defendants W. A. Brooks, individually and as administrator, Sue G. Brooks, and Charlotte E. Brooks Austin took an appeal from that order as well as from an order referring the cause to a special master to take testimony upon the issues remaining as presented by those portions of the answers left in the record.

Upon the previous appeal of this cause to this court (Brooks et al. v. Federal Land Bank of Columbia, 106 Fla. 412, 143 So. 749, from which the above history of the case is taken) we held the pleas of the statute of nonclaim to be good as a matter of law and reversed the order of the court overruling the pleas. We also reversed the order of the court above referred to appointing a special master to take testimony.

While this previous appeal was pending in this court, the complainant filed an amended bill of complaint in the lower court on April 14, 1930.

Our mandate was handed down on October 17, 1932. Subsequent to this mandate, on December 14, 1932, there was filed a 'stipulation' whereby it was agreed by all of the parties to the cause that the cause stand in status quo without the necessity of further action by any party to the cause for the time being and until such time as might be fixed by the court upon the application of any of the parties to the case after five days notice had been given the other parties that such application was going to be made to the court.

The Federal Land Bank of Columbia made a motion to file a second amended bill of complaint on January 14, 1937. This bill was allowed to be filed subject to the objections of the defendants. Thereafter on February 15, 1937, the defendants filed objections to the filing of this second amended bill of complaint. On March 17, 1937, the court entered an order stating that it was without jurisdiction to permit the filing of the second amended bill of complaint, sustaining the defendants' objections and dismissing the cause of action. Thereupon the complainant Federal Land Bank of Columbia entered an appeal from that order of the Court.

Upon the previous appeal of this case (Brooks et al. v. Federal Land Bank of Columbia, 106 Fla. 412, 143 So. 749), this court did not make a final disposition of the cause. The mandate of this court of October 17, 1932, did nothing more than sustain the legal sufficiency of certain pleas of the defendants, and reversed the order of the chancellor overruling the pleas, as well as the order appointing a special master, as above set forth. The cause of action was then, in legal effect, remanded to the circuit court 'for further decree in accordance with, and not inconsistent with the ruling of this court, with leave to take such further proceedings, in the cause as right and justice may require in arriving at another decree which will accord with the ruling and mandate of the appellate court'; the general rule being that an appeal in a chancery case is 'a step in the cause'. Simpson v. Warren, 106 Fla. 688, 143 So. 602, 144 So. 324; Rabinowitz v. Houk, 100 Fla. 44, 129 So. 501; 3 C.J. 320. In this general connection see 4 C.J. 1220, et seq.

The court in sustaining the legal sufficiency of a plea does not direct or award an issue, Crump v. Perkins, 18 Fla. 353, nor does it pass upon the facts of the case. The facts alleged in the plea, unless admitted, are to be determined after the testimony has been taken. The ruling of the court upon the legal sufficiency of a plea does not bar the taking of testimony as to matters of fact alleged in the plea, where its legal sufficiency is upheld.

'Ordinarily, where a plea in equity is set down for argument, its truth is admitted only for the purpose of testing its legal sufficiency. The judgment to be entered upon the allowance of such a plea upon argument is not definitive, for its truth may be denied by the plaintiff by replication and the parties may then proceed to examine witnesses, the one to prove, the other to disprove, the facts stated in the plea; and no order of the court merely passing upon the legal sufficiency of the plea should preclude the plaintiff the right thus to controvert the truth of the facts alleged.' Wilson v. Mitchell, 43 Fla. 107, 30 So. 703.

The amended bill of complaint filed by formal permission of the court on April 14, 1930, alleged that the administrator had waived formal presentation of the mortgage claim...