Moses v. Woodward

• Decision Date: 01 March 1932
• Citation: 140 So. 651,109 Fla. 348
• Court: Florida Supreme Court
• Parties: MOSES et al. v. WOODWARD et al.

140 So. 651

109 Fla. 348

MOSES et al. v. WOODWARD et al.

Florida Supreme Court

March 1, 1932

Commissioners' Decision.

Suit by Eliza M. Woodward, joined by her husband and next friend, M L. Woodward, and others, against Adelaide V. Moses, a feme sole, and others. Decree in favor of the complainants, and the defendants appeal.

Affirmed.

ELLIS and TERRELL, JJ., dissenting. Appeal from Circuit Court, Dade County; Paul D Barns, judge.

COUNSEL

Boone T. Coulter, of Miami, for appellants.

Robillard Copeland & Therrel, of Miami, for appellees.

OPINION

DAVIS C.

The appellees, whom we will hereafter refer to as the complainants, filed their bill of complaint for the foreclosure of a mortgage. The appellants, Adelaide V. Moses, Annie D. Washington, and Maude W. Brewer, the mortgagors, filed their answer to the said bill admitting the execution of notes and mortgage, but denying the defaults as alleged in the bill of complaint. They also alleged that the terms and conditions of the notes and mortgage were abrogated and superseded by an agreement entered into on the 17th day of December, 1926, with M. L. Woodward, assignor, of an undivided one-half of the said notes and mortgage, and Isabelle Levi, by and through her husband as her agent, whereby the payments due and to become due on said mortgage were extended for a period of two years; and they say that subsequent to the said date on, to wit, 31st day of October, 1927, they were in default in the payment of the interest due on the mortgage and that they entered into an agreement with the said Woodward, 'who was the owner of an undivided interest in the said mortgage indebtedness,' whereby the mortgagees waived the default and agreed that the said Woodward should have the said right to take possession of the said premises and collect the rents and profits thereof, and apply the same (1) to the payment of taxes and upkeep of the property, (2) to the payment of interest on a first mortgage, (3) to the payment of interest on the mortgage in suit, and (4) the balance to be applied to the payment of the principal of the first mortgage until said mortgage was paid, and then to the payment of the principal of a second mortgage; and that said rents and profits were to be taken in lieu of all payments due and to become due on said mortgage. It was alleged further that the possession of the mortgage premises was delivered to the said Woodward under and by virtue and in accordance with the said agreement, but that said Woodward and Isabelle Levi breached and violated the agreement.

After the answer was filed, the complainants, by leave of the court, amended their bill by adding the following, designated as paragraph 9: 'And your Orators aver that the defendants, Adelaide V. Moses, Annie D. Washington and Maude W. Brewer, pretend as an excuse for their failure to pay the sums of money due by your Orator's mortgage and to comply with the covenants in said mortgage but cannot be heard to say, that there is in force and effect an agreement whereby the fine for the payment of your Orator's mortgage was extended, and whereby the said M. L. Woodward was put in possession of the mortgaged premises to collect the rents and profits therefrom and apply the same as follows: (1) to the payment of taxes and upkeep of the property, (2) to the payment of interest on the first mortgage, (3) to the payment of interest on the second mortgage, and (4) the balance to be applied to the payment of the principal of the first mortgage until said mortgage was paid, and then to the payment of the principal of the second mortgage, and whereby it was agreed and understood that said rents and profits were to be taken in lieu of all payments due and to become due on said mortgage; for, on the other hand, if such an agreement was made, your Orators state the fact to be that while the said M. L. Woodward was, in pursuance of said agreement, in possession of the mortgaged premises, towit, the --- day of January, 1929, the defendants, Adelaide V. Moses, Annie D. Washington, and Maude W. Brewer, did abandon and renounce said extension agreement, did enter into, have ever since been, and are now, in, possession of said mortgaged premises, and have ever since been, and are now appropriating the rents and income therefrom to their own use.'

This amendment was demurred to specially upon the grounds: (1) That it neither admits nor denies that there was an agreement between the said parties modifying the mortgage, and (2) that the paragraph shows on its face that the remedy of the complainants is to enforce said agreement, and not a foreclosure. This demurrer was overruled by the court and the appellants have assigned as error the order of the court thereon.

Inasmuch as the first ground of demurrer is not argued in the brief of the appellants, we will disregard it. The second ground is based upon the assumption that the amendment contains an allegation that the agreement had been made. An inspection of the amendment discloses that it is not alleged that the agreement had been entered into between the parties. It merely avers that certain named defendants 'pretend, as an excuse for failure to pay' the sums due that there is in fact an agreement, 'but, on the other hand, if such an agreement was made, etc.' It is apparent that the pleaders avoided making an allegation setting up an agreement between the parties, but if we assume that it did set up such an agreement, as is contended by the appellants, we are unable to see wherein the amendment adds to or detracts from the statement of the complainants' case as shown by the bill. It merely shows that the complainants sought to anticipate what the said defendants in their answer rely upon as defense to the suit, and to excuse the same.

As a general rule, the plaintiff's initial pleading need and should not, by its averments, anticipate a defense thereto, and negative or avoid it. 49 C.J. 149. See, also, Hazen v. Cobb-Vaughan Motor Company, 96 Fla. 151, 117 So. 853.

'If the pleading itself states a cause of action, the fact that it also attempts to negative or avoid a defense is not a fatal defect, but allegations made for this purpose are immaterial and may be treated as surplusage, unless defendants wish to rely upon them, in which case he will be relieved from specifically setting up his defense and may accept the issue presented by the plaintiff.' 49 C.J. 151.

The amendment could have been stricken and the bill would have been a good pleading. 49 C.J. 84. See, also, Kneeland v. Tampa N. R. Co., 94 Fla. 702, 116 So. 48; Stinson v. Prevatt, 84 Fla. 416, 94 So. 656.

'While it (surplusage) may be properly stricken out on motion it does not render a pleading subject to a demurrer, either general or special.' 49 C.J. 86.

The court committed no error in overruling the demurrer to the amendment to the bill.

Appellants also assign as error the overruling of exceptions to the master's report finding that complaints had, by competent evidence, sustained the allegations of the bill, and that the equities were with complainant, and in support of this assignment, it is contended that the complainant, Eliza M. Woodward, did not show that she had any interest in the notes in suit, that the notes were filed in evidence subject to the condition that the 'indorsement and assignment' be shown, that the evidence shows that the mortgagees took charge of the mortgaged premises to collect the rents and apply the same to the upkeep of the property and in payment of the indebtedness, and, therefore, a novation of the mortgaged indebtedness, and that complainants failed to prove that the mortgagors had abandoned and renounced the alleged extension agreement, and have ever since been in possession of the premises and appropriating the rents and income therefrom.

The complainants alleged and proved that M. L. Woodward did on the 10th day of August, 1926, about two months prior to alleged agreement with him, transfer, assign, and deliver to the complainant, Eliza M. Woodward, all of his right, title and interest in the mortgage and notes by an instrument under seal, which instrument was recorded on the 2nd day of November, 1926. While an indorsement of the...