Randall v. Bourquardez

• Decision Date: 05 May 1887
• Citation: 23 Fla. 264,2 So. 310
• Parties: RANDALL and others v. BOURQUARDEZ.
• Court: Florida Supreme Court

2 So. 310

23 Fla. 264

RANDALL and others v. BOURQUARDEZ.

Florida Supreme Court

May 5, 1887

Appeal from Hillsborough county, Sixth Judicial circuit.

Syllabus by the Court

SYLLABUS

Where the mortgagor is in possession of the land mortgaged, holding the same under a deed of conveyance with full covenant warranting the title, and there has been no eviction, actual or constructive, and no insolveney of, nor fraud or misrepresentation upon the part of, the vendor is alleged by the mortgagor, such mortgagor cannot set up an outstanding title or breach of the covenants as a defense to a bill of foreclosure brought by the vendor for the unpaid purchase money, but in such a case his remedy is by action at law on the broken covenant. Coy v. Downie, 14 Fla. 544, an action under the Code of Procedure of 1870, since repealed distinguished.

A decree rendered against a feme covert, on an ordinary bill of foreclosure, for the payment by her of the balance of the mortgage debt which may remain unpaid after the sale of the mortgaged premises, is a personal decree, and should be reversed.

COUNSEL

Wall & Turman, for appellants.

Sparkman & Sparkman and H. C. Macfarlane, for appellee.

OPINION

RANEY J.

1. The appellee filed a bill of foreclosure of mortgage in the circuit court of Hillsborough county in May, 1886, against the appellants, Allen F. Randall and his wife, Mary F Randall, and Orlando Knapp and Clara A. Knapp, his wife. The mortgage, which was executed by appellants to appellee on July 28, 1885, was made to secure the balance of the purchase money agreed to be paid for the land covered by the mortgage such balance being evidenced by two promissory notes signed by each of the appellants. The answer alleges that the land was, at the death of the appellee's late husband, Constant Bourquardez, he having died September 18, 1884, used and occupied by him as his homestead, and that he left children, who still survive him, and that the appellee, who claimed title to the land under a devise of the same to her by his last will and testament, had no title thereto, as a homestead was not the subject of devise under the constitution of 1868, which was in force at the time of his death, and that the title to the land is in the children; and the appellee had, at the time of the conveyance, no title thereto; that the conveyance from appellee to the appellants contains full covenants warranting the title. Neither insolvency of nor fraud upon the part of the appellee is alleged.

It was held in Coy v. Downie, 14 Fla. 544, a case under the Code of Procedure, which was adopted in 1870, and repealed in 1873, that when a mortgage for purchase money is sought to be foreclosed, and the deed of the premises contained covenants the mortgagor may resist the foreclosure by a recoupment or offset of damages for a breach of covenants to the extent of the damages sustained for a failure or partial failure of title, or any other matters embraced in the covenants. The right of the mortgagor to make such defense, it is said in the opinion, 'cannot be questioned.' Being a Code case, it is sufficient to assume the correctness of the decision under that system of court procedure. We understand the rule of chancery to be that where the mortgagor remains in undisturbed possession of the land which he holds under a deed of conveyance, with full covenants warranting the title, and no eviction, actual or constructive, is shown, and no insolvency of, nor fraud or misrepresentation upon the part of, the vendor is alleged, the mortgagor cannot sit upon such outstanding title, or the breach of the covenants, as a defense of the bill of foreclosure for the unpaid purchase money for which the notes and mortgage were given, but that in all such cases, of which that now under consideration is one, the mortgagor is left to his remedy at law on the broken covenant. Patton v. Taylor, 7 HOW. 132; Noonan v. Lee, 2 Black, 500; Peters v. Bowman, 98 U.S. 56; Bumpus v. Platner, 1 Johns. Ch. 213; Abbott v. Allen, 2 Johns. Ch. 519; Edwards v. Bodine, 26 Wend. 109; Simpson v. Hawkins, 1 Dana, 303; Hill v. Butler, 6 Ohio St. 207; Leggett v. McCarty, 3 Edw. Ch. 124; McLemore v. Mabson, 20 Ala. 137; Booth v. Ryan, 31 Wis. 45; Robards v. Cooper, 16 Ark. 288; Latham v. Morgan, 1 Smedes & M. Ch. 611; York v. Allen, 30 N.Y. 104; Smith v. Fiting, 37 Mich. 148; Hile v. Davison, 20 N. J. Eq. 228; Glenn v. Whipple, 12 N. J. Eq. 50; Key v. Jennings, 66 Mo. 356; Gouverneur v. Elmendorf, 5 Johns. Ch. 79; James v. McKernon, 6 Johns. 543. In Long v. Allen, 2 Fla. 403, it was held that a want or failure of title of land...