Nelson v. Stockton Mortg. Co.

• Decision Date: 12 November 1930
• Citation: 100 Fla. 1191,130 So. 764
• Parties: NELSON et al. v. STOCKTON MORTGAGE CO.
• Court: Florida Supreme Court

130 So. 764

100 Fla. 1191

NELSON et al. v. STOCKTON MORTGAGE CO.

Florida Supreme Court, Division B.

November 12, 1930

Suit by the Stockton Mortgage Company against Beulah Rose Nelson and others. From an order overruling the plea of named defendant and certain other defendants, they appeal.

Reversed and remanded. Appeal from Circuit Court, Polk County; W. J. Barker, Judge.

COUNSEL

Ira C. Hopper, of Lakeland, for appellants.

C. V McClurg, of Lakeland, for appellee.

OPINION

BUFORD J.

The appellee exhibited its bill of complaint against the following named defendants:

Beulah Rose Nelson, formerly Beulah Rose Weaver or Beulah Weaver and her husband George P. Nelson, Reed Waldo Weaver, Jr., a minor, and Beulah Rose Nelson, as guardian for Reed Waldo Weaver, Jr., a minor, Bradford G. Williams, as executor of estate of R. W. Weaver, deceased, et al.

The bill of complaint was in the usual and approved form of such bills for the foreclosure of the ordinary real estate mortgage under usual conditions. The bill of complaint alleged that the mortgaged property was the homestead of the maker of the mortgage, R. W. Weaver, and was occupied by himself, his wife, and his children at the time of the making of the mortgage.

A demurrer was filed by Beulah Rose Nelson and her husband George P. Nelson, and Beulah Rose Nelson, as guardian for Reed Waldo Weaver, Jr., a minor. The demurrer was sustained in part and overruled in part. Thereupon the complainant amended the bill to show the death of W. R. Weaver on July 8 1926, the appointment and qualification of Bradford G. Williams as executor, and presentation to him as executor of the last will and testament of Weaver, the claim against Weaver within the statutory period for representing claims, and alleged that the report of the executor showed that there is no personal estate out of which the indebtedness to the complainant might be recovered.

A plea was then filed in the following language:

'That the land described in the bill of complaint and in the alleged mortgage sought to be foreclosed was never conveyed by R. W. Weaver and wife, Beulah Weaver, to Telfair Stockton & Company, a corporation, as is claimed in said bill, because, as is stated in said bill, said property was the homestead of said R. W. Weaver at the time of the purported execution and acknowledgment of said alleged mortgage and at the time of his death a few days thereafter and his interest in said property descended at his death to his widow and two children named in said bill, and these defendants say that at the time of the death of said R W. Weaver there was no debt or other obligation due from said mortgagors to said mortgagee for the payment or performance of which said alleged mortgage was security, for the reason that none of the money alleged in said bill to have been loaned to said mortgagors by said mortgagee, for the payment of which said alleged mortgage is alleged to be security, was paid to said mortgagors, or either of them, or to anyone at their direction, or at the direction of either of them, prior to the death of said R. W. Weaver.

'And these defendants further say that if any money whatever was paid by said mortgagee on said purported loan it was paid long after the death of said R. W. Weaver and after the marriage of his widow to defendant, George P. Nelson, supposedly to one Bradford G. Williams, executor of the estate of said decedent, and was disbursed by him to persons and for purposes unknown to either of these defendants.

'Wherefore, these defendants pray judgment whether they shall be compelled to make any other for further answer to said bill as amended, and pray to be hence dismissed with their reasonable costs in this behalf sustained.'

The record indicates that the plea was set down for hearing. On hearing the following order was made:

'This cause coming on to be heard upon the plea of the defendants, Beulah Rose Nelson, formerly Beulah Rose Weaver or Beulah Weaver and her husband, George P. Nelson, and Beulah Rose Nelson as Guardian for Reed Waldo Weaver, Jr., a minor, to the bill of complaint herein, and same having been argued by counsel for the complainant and said defendants, and the Court being fully advised in the premises, it is ordered that said plea be and the same is hereby overruled as to the defendants, Beulah Rose Nelson, formerly Beulah Rose Weaver or Beulah Weaver, and George P. Nelson, her husband, and allowed as to the defendant Beulah Rose Nelson as Guardian for Rood Waldo Weaver, Jr., a minor, but with leave to the complainant to amend its bill on or before the rule day in February, 1930, should it so elect, and upon the filing of such amendment it is ordered that the defendants have ten days from the filing of such amendment in which to further plead and/or answer to said bill as amended. On failure of the complainant to amend its bill, it is ordered that the defendants Beulah Rose Nelson, formerly Beulah Rose Weaver, or Beulah Weaver, and George P. Nelson, her husband, have until February 13, 1930, in which to answer herein.'

Thereupon, an additional amendment was made to the bill in the following language:

'That as hereinabove stated, the said R. W. Weaver and wife Beulah Weaver, were at the time of the execution of the said note ahd mortgage, the equitable owners of the hereinabove described real estate, and that they were in possession thereof, having for a long period been engaged in the erection of a residence upon said property and the making of valuable improvements thereon; that the loan to said parties by the said Telfair Stockton & Company, a corporation, was for the purpose of financing the building of said residence on said property and the placing of said other valuable improvements thereon, in addition to the providing of funds for the payment of the balance due upon the purchase price thereof to the Central State Bank, the then owner of the fee title subject to contract to convey the same upon the order of the said R. W. Weaver; that each and every of the improvements for the said property, including the erection of said residence thereon, were pursuant to executed contracts and obligations with respect to the said property entered into by the said R. W. Weaver long prior to the execution and delivery of said mortgage, and the complainant says that the proceeds of said loan were so expended upon the said property.'

After amendment was filed, another plea was filed by the parties filing the first plea, in the following language:

'That the land described in the bill of complaint and in the alleged mortgage sought to be foreclosed was never conveyed by R. W. Weaver and wife, Beulah Weaver, to Telfair Stockton & Company, a corporation, as is claimed in said bill, because, as is stated in said bill, said property was the homestead of said R. W. Weaver at the time of the purported execution and acknowledgment of said alleged mortgage and at the time of his death a few days thereafter and his interest in said property descended at his death to his widow and two children named in said bill, and these defendants say that at the time of the death of said R. W. Weaver there was no debt or other obligation due from said mortgagors to said mortgagee for the payment or performance of which said alleged mortgage was security for the reason that none of the money alleged in said bill to have been loaned to said mortgagors by said mortgagee, for the payment of which said alleged mortgage is alleged to be security, was paid to said mortgagors or either of them, or to anyone at their direction, or at the direction of either of them, prior to the death of said R. W. Weaver. And these defendants further say that if any money whatever was paid by said mortgagee on said purported loan it was paid long after the death of said R. W. Weaver, and after the marriage of his widow to defendant, George P. Nelson, supposedly to one Bradford G. Williams, executor of the estate of said decedent, and was disbursed by him to persons and for purposes unknown to either of these defendants.

'Wherefore, these defendants pray judgment whether they shall be compelled to make any other or further answer to said bill amended as aforesaid, and pray to be hence dismissed with their reasonable costs in this behalf sustained.'

The record indicates that the plea was set down for hearing and that on hearing the court made the following order:

'This cause...