Robbins v. Blanc

• Decision Date: 04 June 1932
• Citation: 142 So. 223,105 Fla. 625
• Court: Florida Supreme Court
• Parties: ROBBINS v. BLANC et ux.

142 So. 223

105 Fla. 625

ROBBINS v. BLANC et ux.

Florida Supreme Court, Division B.

June 4, 1932

Suit by J. Albert Robbins against C. M. Blanc and wife. From an order sustaining a demurrer to the bill of complaint, the complainant appeals.

Reversed and cause remanded, with directions. Appeal from Circuit Court, Pinellas County; T Frank Hobson, judge.

COUNSEL

Olaibourne M. Phipps, of Tampa, for appellant.

Booth &amp Dickinson, of St. Petersburg, for appellees.

OPINION

DAVIS J.

The sole question presented on the argument of this case is whether or not the complainant must offer in his bill to repay the sum received as the actual principal of a loan together with legal interest thereon, when he files a bill for redemption from a usurious mortgage given to secure a greater sum than the loan.

In this case the court below sustained a demurrer interposed by appellees, defendants in the lower court, to the bill of complaint by the appellant, complainant in the lower court.

The bill alleges, in substance, that appellee was holding title to properties as security for two several loans. On one of these loans it is alleged the complainant received $7,500 and agreed in consideration thereof to pay the defendant $8,000 six months after date and $4,000 twelve months after date. On the other transaction it was alleged that the complainant received $4,400 from defendant and agreed to pay therefor the sum of $5,500 within two years, with interest on said sum of $5,500 at the rate of 8 per cent. per annum.

The bill prays that one mortgage be decreed to be usurious to such an extent that both principal and interest be forfeited, but that the other mortgage be decree to be usurious only to such an extent that the interest on same is forfeited. It is alleged by the bill that complainant is entitled to have one of the two lots involved, reconveyed to him upon payment of the sum of $1,900 balance due, which complainant in his bill also offers to pay, upon a reconveyance of the property by defendant to complainant.

The bill of complaint also contains the following allegation which was set forth in a separate and independent paragraph:

'That the complainant hereby offers to pay any and all sums which this Honorable Court may find to be justly due and owing from him to the defendant C. M. Blanc on such terms and conditions that this Honorable Court may find to be proper and thereby offers to do complete equity.'

Such allegation is sufficient to withstand a general demurrer based on the ground that complainant does not come into equity with clean hands, or that complainant seeks from a court of equity unconscionable relief without offering to do complete equity. The rule is that a bill in equity which states any ground for equitable relief is not subject to a general demurrer. City of Orlando v. Equitable Bldg. & Loan Assoc., 45 Fla. 507, 33 So. 986.

One of the objects of the bill in this case is to have certain deeds absolute on their face declared to be mortgages and subject to redemption. The allegations of the bill are clearly sufficient to meet the test of a bill of that sort, so the bill of complaint cannot be said to be wholly without equity, such as would have warranted the order made by the chancellor sustaining the general demurrer, even if all the other grounds in the bill urged for relief are unfounded.

To support a bill for redemption from a mortgage, it is only necessary that complainant offer to pay all amounts legally due on the debt secured, in order to sustain such bill. If, by reason of violation of the usury laws, a part of the amount lent has become forfeited or otherwise not recoverable in law, it is wholly unessential to enable complainant to obtain relief, that he offer to pay amounts which under the law are not payable by him or recoverable from him. To hold otherwise would permit the usury laws to be defeated and frustrated in their object, by the simple device of the usurer in exacting a deed in lieu of a mortgage to secure and make certain the payment of amounts which would otherwise be forfeited, or be rendered not recoverable from the borrower.

When it is once established that a mortgage exists, the equitable right of redemption attaches to the transaction as an inseparable incident. The right to redeem is an incident to every mortgage, or deed which is in law to be regarded as a mortgage, because given to secure the payment of money, and such right of redemption belongs to the mortgagor and those claiming under him. This right cannot be extinguished except by due process of law. Stovall v. Stokes, 94 Fla. 717, 115 So. 828; Quinn Plumbing Co., Inc., v. New Miami Shores Corp., 100 Fla. 413, 129 So. 690, 73 A. L. R. 600.

He who seeks equity must do equity, so it is an essential part of a bill to redeem a mortgage that it offer in express terms to pay the amount due, with costs. Horn v. Indianapolis Nat Bank, 125 Ind. 381,...