Starke v. Pfender

• Decision Date: 25 February 1941
• Citation: 200 So. 850,146 Fla. 262
• Parties: STARKE v. PFENDER et al.
• Court: Florida Supreme Court

200 So. 850

146 Fla. 262

STARKE v. PFENDER et al.

Florida Supreme Court, Division B.

February 25, 1941

Rehearing Denied March 25, 1941.

Suit by Marie Pfender, widow, etc., and another against W. E. Starke individually, to cancel notes and have mortgage declared satisfied, wherein the defendant filed a cross-bill seeking a decree of foreclosure. From a judgment ordering the mortgage satisfied, canceling the notes, and dismissing the cross-bill, the defendant appeals.

Judgment affirmed. Appeal from Circuit Court, Dade County; Arthur Gomez, Judge.

COUNSEL

E Clyde Vining and Raymond O. Burr, both of Miami, for appellant.

Horton & Straham and Irving Ellsworth Lewis, all of Miami, and Whitfield & Whitfield, of Tallahassee, for appellees.

OPINION

THOMAS Justice.

The facts forming the background of this litigation are undisputed and are not complex. A mortgage was executed to secure two promissory notes evidencing a loan, and later it was agreed by the mortgagee that if the mortgagors would furnish the latter with board and lodging and care for him during his lifetime, the mortgage would be cancelled in consideration for those services. The agreement was fulfilled by the mortgagors, the mortgagee having lived approximately two years after it was made. Nearly five years after the death of the mortgagee suit was brought to cancel the notes and to have the mortgage declared satisfied, and by cross-bill the executor of the mortgagee's estate sought a decree of foreclosure.

The chancellor ordered the mortgage satisfied, cancelled the notes and dismissed the cross-bill.

Upon the appeal from his decree it occurs to us that it is necessary to decide but one question, namely, whether the defendants should have prevailed upon their cross-bill because no 'claim or demand' was filed with the executor within the time specified in section 120 of Chapter 16103, Laws of Florida Acts of 1933. Thus, it will be seen that it is the position of the appellant that the appellees should not have been favored with the decree because of the failure to present to the executor a claim for the services rendered the testator in accordance with the terms of the agreement. This contract was entered into after the execution of the mortgage and contemplated the performance of services by the mortgagors, which were satisfactory to the mortgagee and accepted by him in lieu of money in payment of the debt. At the time of his death nothing remained to be done by any of the parties to the mortgage, or the contract, save the simple mechanics of surrendering the notes and executing a satisfaction of the mortgage. Furthermore, the compliance on the part of the executor with a request for delivery of the notes and execution of a satisfaction piece would have resulted in no depletion of the assets of the estate.

Consequently, although the debtors had a right to the satisfaction of the indebtedness which they could present in the bill they brought this right was, too, a defense to any foreclosure of the mortgage because it was in fact a payment of the original debt. The agreement for the furnishing and acceptance of services in lieu of currency attached to the mortgage and was not an agreement so independent that the mortgagors could make a demand for any specific sum due irrespective of their obligation under the other instrument.

To illustrate, if ...