Putnam v. Morgan

• Court: Florida Supreme Court
• Writing for the Court: COCKRELL, J.
• Citation: Putnam v. Morgan, 48 So. 629, 57 Fla. 503 (Fla. 1909)
• Decision Date: 02 February 1909
• Parties: PUTNAM et al. v. MORGAN.

48 So. 629

57 Fla. 503

PUTNAM et al. v. MORGAN.

Florida Supreme Court, Division A.

February 2, 1909

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

Bill by C. C. Morgan against E. M. Putnam and Lina Putnam. Decree for plaintiff, and defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

An answer to the foreclosure of a mortgage, attempting to set up defects in title to other lands bought of the mortgagee, but not included in the mortgage, and failing to show paramount title in another, or eviction, actual or constructive, or fraud, is subject to exceptions.

An affidavit for a continuance of a hearing before an examiner which does not appear to have been brought to the attention of the examiner or the chancellor, will not avail upon an appeal.

An appellate court will not falsify a record upon the unsupported statement in counsel's brief.

COUNSEL

H. J. Spence, for appellants.

J. H Hancock, for appellee.

OPINION

COCKRELL J.

Upon reaching this cause in its regular order, we reversed the final decree herein because the record as then before us showed that the Barnes-Jesup Company, a necessary party, had never been served, though a decree had been entered against that party. Before issuance of our mandate, we granted a rehearing and permitted a correction of the record, showing that party had been served, and doing away with the basis for the order of reversal.

This is a bill to enforce a mortgage lien upon lands lying in De Soto county, given by the Putnams to Morgan. The Putnams filed answers attempting to set up payments for which no credit had been given, and also defects in the title to the lands, for the purchase price of which the mortgage was given, and exceptions to these answers were sustained. It is exceedingly difficult for us to spell out the particular portions of the answers to which the exceptions apply, owing to the difference in the pagings between the originals and the transcript, and for this reason alone we might decline the undertaking.

The specific rulings of the court upon the exceptions to the original answer enable us to see that the paragraphs therein referred to were subject to the objections urged. The attempts to set up pre-existing tax liens upon the mortgaged property are too indefinite as to time and otherwise, and the averments as to outstanding title fall far short of the rules laid down in Randall v. Bourgardez, 23 Fla. 264, 2 So. 310, 11 Am. St. Rep. 379, and Adams v. Fry, 29 Fla. 318, 10 So. 559. The amended answer was as bad or worse in that it disclosed that the supposed defects of title were as...