Herrin v. Abbe

• Decision Date: 31 March 1908
• Citation: 55 Fla. 769,46 So. 183
• Parties: HERRIN et al. v. ABBE.
• Court: Florida Supreme Court

46 So. 183

55 Fla. 769

HERRIN et al. v. ABBE.

Florida Supreme Court, Division A.

March 31, 1908

Appeal from Circuit Court, Manatee County; Joseph B. Wall, Judge.

Mortgage foreclosure by C. R. Abbe against James A. Herrin and others. Decree for complainant, and defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

In an equity proceeding a cross-bill may upon proper showing be filed before hearing, where it appears that the suit as instituted is insufficient to bring before the court all matters necessary to enable it fully to decide the rights of all the parties. Where matters set up in a cross-bill are equally available against the complainant by an answer to the original bill, a cross-bill is unnecessary.

A parol agreement by the grantee, at the time of taking a deed of conveyance to real estate, that he will assume the mortgage indebtedness upon the property as a part of the consideration of the conveyance, may be enforced in equity by the mortgagee.

The privilege growing out of the relation of attorney and client is for the benefit of the client, and it extends to communications between them as to legal matters made for the purpose of professional aid or advice. Communications between attorney and client concerning an indebtedness of the client to the attorney are not ordinarily within the privilege.

Where a deed conveying real estate has been accepted, testimony as to declarations made by the grantee prior to accepting the deed as to the true consideration of the deed is in general not admissible.

Where a deed of conveyance recites a consideration of 'one dollar and other valuable considerations,' the statement as to the consideration is not complete, and the true consideration may be shown by parol.

A promise by the purchaser of lands that are subject to mortgages to assume and pay off the incumbrances as a part of the consideration or purchase price is not required to be in writing, as it is not a promise to pay the debt of another but is a promise to pay to a third party the debt the grantee owes the grantor. The fact that in thus paying his own debt the grantee incidentally discharges the debt of his grantor to another does not bring the promise within the statute of frauds.

A provision in a deed of conveyance that the land is conveyed subject to all liens and mortgages standing of record against it has no controlling reference to the consideration of the deed, recited therein as being 'one dollar and other valuable considerations,' and evidence as to the true consideration does not vary the provision making the conveyance subject to the incumbrances.

It is not error to deny a motion to strike testimony, when some of the testimony included in the motion is admissible as against the grounds of the motion.

Where there is testimony to sustain a decree, it will in general not be reversed on the ground that it is not supported by the evidence.

COUNSEL

Singeltary & Reaves, for appellants.

C. C Whitaker, for appellee.

OPINION

WHITFIELD J.

This is an appeal from a decree of foreclosure, in which it is decreed that the appellant Allen Whitted, who purchased the mortgaged property, 'assumed and agreed to pay the complainant's mortgaged indebtedness.'

It is alleged that the mortgagor James A. Herrin and his wife conveyed to Allen Whitted by a good and sufficient warranty deed title to the premises, 'and that as part of the consideration and purchase price of the said mortgaged premises by the said Allen Whitted from the said James A Herrin and wife the said Allen Whitted acknowledged and assumed the mortgaged indebtedness, * * * and promised to pay the same, with interest thereon according to the true intent and meaning of the note and mortgage, and did and has assumed and agreed to pay the same; the said assumption of said mortgage indebtedness being considered and agreed to be a part of the purchase price to be paid for said premises.'

The warranty deed conveying the premises from the mortgagor James A. Harrin and wife to Allen Whitted states that the consideration therefor is 'the sum of one dollar and other valuable consideration,' and the deed, after the description of the land, contains the following: 'The above property is conveyed subject to all liens and mortgages now standing of record against the same.'

The answer of the defendant Whitted contains the following: 'This defendant denies that he assumed the said mortgage indebtedness in favor of the complainant, or that he ever at any time as part consideration of the conveyance of said premises to him, or for any other consideration, agreed or obligated to pay the said indebtedness or any part thereof. This defendant says that he took a conveyance of said property subject to the mortgage of the complainant, but that he never promised or agreed with the said James A. Herrin, or any other person, to pay to the complainant, or to any other person, the said principal sum of money secured to her by the said mortgage, nor the interest thereon, nor any part thereof.'

A replication to the answer was filed.

After the testimony had been taken before a master and reported, application was made by Whitted to file a cross-bill against the defendant James A. Herrin and the complainant, Mrs. C. R. Abbe. This application was refused, on the ground 'that the defendant can obtain all the relief to which he may be entitled under his answer to the bill of foreclosure, and that there is nothing in the allegations of the cross-bill which, if true, would entitle the defendant to a rescission of the contract of purchase.'

A cross-bill may, upon proper showing, be filed before hearing, when it appears that the suit as instituted is insufficient to bring before the court all matters necessary to enable it fully to decide upon the rights of all the parties. Finlayson v. Lipscomb, 16 Fla. 751, text 759; 16 Cyc. 328. Where the matters of the cross-bill are equally available as against the complainant by an answer to the original bill, a cross-bill is unnecessary. Sanderson's adm'rs v. Sanderson, 17 Fla. 820, 834; 16 Cyc. 327.

The cross-bill sought upon the ground of mistake a rescission of the conveyance of the land from Herrin to Whitted and a reinstatement of a judgment in favor of Whitted that was a part of the consideration for the conveyance of the premises in controversy. Conceding that the cross-bill was timely presented, it does not appear that the complainant in the cross-bill, Allen Whitted, could not obtain through his answer all the relief to which he was entitled as against Mrs. C. R. Abbe, the sole complainant in the original bill. If he had not assumed the payment of the mortgage debt his defense was adequate under his answer. Mrs. Abbe had no interest in the rescission of the conveyance to Whitted, or in the reinstatement of Whitted's judgment. The court will not be held in error...