Meredith v. Long
| Decision Date | 05 December 1928 |
| Parties | MEREDITH et al. v. LONG et al. |
| Court | Florida Supreme Court |
En Banc.
Suit by David D. Long and others against Lillian L. Meredith and another. Decree for complainants, and defendants appeal.
Reversed.
Syllabus by the Court
Instituting suit to foreclose mortgage operates as exercise of option to treat principal sum as due under stipulation providing therefor on default in payment of interest. Where suit is filed to foreclose a mortgage for the full amount of principal and interest due, and the mortgage contains a clause to the effect that, upon default in the payment of interest when due, the full amount of principal, shall, at the option of the mortgagee, become due and payable, and the bill alleges default in the payment of interest theretofore falling due, the institution of the suit itself operates as an exercise of the option to elect to treat the principal sum secured by the mortgage as due under such stipulation.
In absence of proper supplemental bill, right to relief must be determined on facts existing at time original bill was filed. In the absence of proper supplemental bill filed after permission duly granted, the general rule is that the right of a complainant to the relief prayed must be determined upon the facts existing at the time the original bill was filed.
Bill to foreclose mortgage held prematurely filed. Bill to foreclosure real estate mortgage held prematurely filed, in view of evidence indicating that default probably took place after suit was begun.
Appeal from Circuit Court, Dade County; H. F Atkinson, judge.
McRae & Davis, of Miami, for appellants.
This is an appeal from a decree of foreclosure. The bill was filed May 21, 1926. The appellants had purchased the property on contract shortly subsequent to the time the mortgage was made and subject to such mortgage. The note which was secured by the mortgage was for $3,000 dated June 20, 1924, due three years after date, and bore interest at 8 per cent., payable semiannually. The mortgage provided that upon default in the payment of interest the whole amount of principal and interest should, at the option of the mortgagee, at once become due and payable. The bill alleged that no interest had been paid on the note and mortgage except $80 paid between November, 1924, and February, 1925, and that complainant elected to declare the whole amount of principal and interest due. When it came to the taking of testimony before a special master on April 15, 1927, the complainant mortgagee was not examined. One of the mortgagors was examined in behalf of the complainant, and testified that he personally had not made any payments whatever on the mortgage debt. He did not testify, however, that the purchasers had made no payments. He further testified that the mortgagee had told him he had been paid four payments of $20 each. This was stricken on motion of appellants as hearsay, but the bill admitted practically the same thing. Counsel for appellants then moved to strike the testimony of this witness on the ground that no sufficient evidence of default had been offered. Counsel for complainant then took the stand. He testified that as attorney for complainant he elected to declare the principal note due 'for the following reason: That the semiannual interest due June 20, 1926, and January 20, 1927, have not been paid.' That the note for $3,000 had been 'in my hands for collection since May, 1926,' and had been presented by him for payment without avail to both the original mortgagor and one of the appellants. This was in substance all the evidence submitted. The appellants then made an effort by petition to file an amended answer alleging that the original answer had been filed by their attorney in fact during their absence from the state, they having been served by publication, and that such original answer was made under a misapprehension of the facts by such attorney in fact. The amended answer, which was tendered evidently intended to set up that an arrangement had been made on behalf of complainant by which a certain bank was authorized to collect the amount due on appellant's contract for purchase and apply the payments so as to take care of the amounts falling due under complainant's mortgage, and that in addition to the $80 which had been paid compla...
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...v. Rosbro Realty Corp., 258 N.Y. 472, 180 N.E. 176 (1932); Williams v. Gordon, 205 Cal. 590, 271 P. 1070, 1071 (1928); Meredith v. Long, 96 Fla. 719, 119 So. 114 (1928); Wienke v. Smith, 179 Cal. 220, 176 P. 42, 44 (1918).27 Heist v. Dunlap & Co., 193 Ga. 462, 18 S.E.2d 837, 840 (1942); Del......
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