Mclane v. Piaggio

• Court: Florida Supreme Court
• Writing for the Court: RANEY, J., (after stating the facts as above.)
• Citation: Mclane v. Piaggio, 24 Fla. 71, 3 So. 823 (Fla. 1888)
• Decision Date: 07 March 1888
• Parties: McLANE et ux. v. PIAGGIO et al.

3 So. 823

24 Fla. 71

McLANE et ux. v. PIAGGIO et al.

Florida Supreme Court

March 7, 1888

Appeal from circuit court, Leon county; DAVID S. WALKER, Judge.

Syllabus by the Court

SYLLABUS

A subpoena in chancery may be served on a wife by delivering a copy of the same to her husband, with whom she is co-defendant, in the manner provided by statute for service by delivery to a person, above 15 years of age, residing in the family.

Where a mortgage secures promissory notes falling due at different dates, and a bill is filed to foreclose the mortgage after the maturity of one, but before that of the other, and the latter not matures before the decree of foreclosure and sale is rendered, the decree may cover the latter as well as the former note, if a proper foundation therefor has been laid in the bill.

That a wife, who relinquished her dower by joining with her husband in the execution of a mortgage, did so 'without any pecuniary consideration thereunto moving her,' is not a good plea to a bill filed to foreclose the mortgage. A pecuniary consideration to the wife is not an essential of a relinquishment of dower, made in the manner prescribed by the statute, in a mortgage valid as against her husband.

Where a settlement of accounts has been made by parties competent to contract, and promissory notes executed by one of them to the other for an amount covering both the balance found to be due him, and an additional sum for forbearance, and a mortgage has been made to secure the notes, and no fraud or unfair dealing on the part of the mortgagee is shown, such settlement is a sufficient consideration for the notes and mortgage, and the settlement will not be disturbed.

The fact that the mortgagor was influenced by friendly advice to make such settlement is not, in the absence of fraud upon the part of the person giving the advice, a defense to the foreclosure of the mortgage in favor of such person.

When a final decree has been entered, and a petition for a rehearing is filed within the time prescribed by the statute and rule of court governing in the circuit court, it is not improper upon a hearing upon such petition, to modify the decree as to an error admitted by the complainant, and found by the chancellor, to exist.

A plat of a survey made by a county surveyor or his deputy is not of itself evidence that in making the survey he began at the pine tree mentioned in a mortgage as the initial point of the description of land mortgaged, and stated in such mortgage to be 'about one hundred yards' south-west of a certain mill; nor is such plat evidence that certain improvements intended to be mortgaged, and described in the mortgage as being on the land actually mortgaged, are not on such land.

The vendee of a purchaser at a foreclosure sale should, where his right to possession is clear, be allowed a writ of assistance against a mortgagor in possession of the mortgaged property and who was a party to the foreclosure suit.

The practice of granting a writ of assistance without notice to the party in possession, though sustained by authority, is disapproved. Where, however, as in the case at bar, the parties in possession do not claim that they have been deprived of property covered by the mortgage and decree without notice of such application, but say they are, and have always been, ready to give possession of the property so described, and claim that the description of the property for which the writ was given is not the description contained in the decree, and that they have been deprived, through the instrumentality of the writ, of property not included in the decree, the fact being, however, that the description in the writ is, though not so detailed, clearly the same, in substance, as that in the decree, the action of the chancellor in granting the writ without notice will not be reversed.

As against a mortgagor who has furnished a description of land as that upon which certain improvements intended to be mortgaged by him were located, his statement that the improvements are not on the land so described is not sufficient evidence of their not being on such land to authorize a court to set aside a writ of assistance which has been executed, and restore such property to his possession.

A purchaser at a foreclosure sale should upon demanding possession of the property purchased, exhibit to the party in possession the master's deed; and the vendee of the purchaser should exhibit both such deed, and that from the purchaser to him, if he intends to apply for a writ of assistance against such party.

An appellate court will not allow claims of credit denied by the lower court, unless the testimony shows clearly that there was error in denying them.

COUNSEL

Daniel Campbell, Maxwell & Mallory, and John W Malone, for appellants.

D. L. McKinnon and Blount & Blount, for appellees. The appellees, Piaggio Bros. and Richard L. Campbell, filed their bill in the circuit court of Washington county against the appellants, Jesse N. McLane and wife, on April 30, 1884, to foreclose a mortgage made by them to secure two promissory notes made by said Jesse N. McLane, bearing date January 6, 1883, each for the sum of $2,250, with interest at the rate of 10 per cent. per annum from date, and payable to the order of Piaggio Bros.,--one on the first day of September, and the other September 1, 1884. The mortgage bears the same date as the notes. The property mortgaged is 'ten acres more or less' of lot 3, section 26, township 2 S., range 19 W., within the following boundaries: 'A line beginning at a certain pine tree about one hundred (100) yards south-west of Miller and Crigler's mill, (or formerly known as such,) on Tucker's bayou, and running south, 27º west, seven (7) chains, eighty-eight (88) links, to an oak tree, and thence north, ten (10) chains and ten (10) links, to an oak tree, and thence north, eight (8) degrees east, to a cypress tree on said bayou, and thence along the shore of said bayou to the point of beginning,--said parcel of land being known as the 'McLane Mill Tract;' together with all the buildings, improvements, structures of every kind, saw-mill, boilers, machinery, fixtures, tools, and implements on said premises, or which may be substituted therefor,' as may fully appear by said mortgage, which is made a part of the bill.

The bill alleges that no payment has been made on the said notes except that of $243.75 which has been paid on the note maturing in September, 1883; and 'that, from the nature of said mortgage property, it cannot be so divided as to settle the past-due note without material injury, if not entire destruction, to the value of the remainder of the property, and thereby rendering it worthless as a security' for the second note not then due, but to become due in September, 1884.

It also alleges that Piaggio Bros., being indebted to said R. L. Campbell and Emily C. Smith, and anticipating further indebtedness to them, did on June 23, 1883, assign said notes and mortgage to them, to secure the said indebtedness, and that there is now due said Campbell a balance of $1,145.96, with interest at the rate of 10 per cent. per annum from March 31, 1884.

The notes, which are made part of the bill, are indorsed in blank by Piaggio Bros., and there is in the mortgage an assignment of it and the notes to said Campbell and Mrs. Smith, as collateral for any indebtedness to them, or either of them, whether existing or to arise thereafter.

This assignment is dated June 23, 1883. The bill prays, among other things, that the said respondents may be foreclosed and debarred of all right and equity of redemption in the said mortgaged premises; that the same may be sold under the decree of this court to satisfy the amount due on said mortgage notes, as well as the costs of this suit; and that the proceeds of such sale, after paying the costs of this suit, shall be applied to satisfy the said mortgage notes, and the remainder, if any, paid over to the respondents; and that out of the amount of said notes there shall be paid to the said Richard L. Campbell the amount of his said debt, with interest thereon, and the residue of the amount of said notes, if any, shall be paid over to the complainants, Renaldo Piaggio and David Piaggio.

Subpoena issued August 15, 1884, returnable to the following September rule-day. Service was made on Mrs. McLane (according to the sheriff's return) by delivering a copy to said Jesse N. McLane for his wife, Minerva C. McLane, at Point Washington, in their usual place of abode,--the said Jesse being over the age of 15 years, and residing with said Minerva at the time of such delivery,--and by, at the same time, showing him the original.

On the first day of September, Mrs. McLane, appearing specially, moved to set aside the service as to her, on the ground that delivering a copy to her husband for her was not sufficient. The motion was overruled.

The defendants in November, 1884, filed a demurrer.

The chancellor overruled this demurrer, except as to parties, and on this ground sustained it, and gave complainants leave to amend the bill by alleging that Mrs. Smith had no interest in the notes or mortgage, and required the defendants to answer on or before the first Monday in January, 1885. The complainants amended their bill by alleging that the interest of said Emily Smith in said notes and mortgage has been fully paid and satisfied.

On December 14th, Mrs. McLane filed a plea stating that she signed and sealed the mortgage, but that she did so without any pecuniary consideration thereunto moving her to sign and execute the same. The chancellor overruled this plea and gave leave to answer.

The answer of Jesse N. McLane filed December 29, 1884, admits the...