Wolkowsky v. Kirchick

• Decision Date: 23 February 1923
• Citation: 95 So. 611,85 Fla. 210
• Parties: WOLKOWSKY v. KIRCHICK et al.
• Court: Florida Supreme Court

95 So. 611

85 Fla. 210

WOLKOWSKY v. KIRCHICK et al.

Florida Supreme Court

February 23, 1923

Suit by Abram Wolkowsky against Gutman Kirchick and others. From a decree for defendants, plaintiff appeals.

Reversed.

Syllabus by the Court

SYLLABUS

Decree contrary to evidence reversed. Where the decree of the chancellor is not supported by, but is contrary to, the evidence, it will be reversed by this court on appeal.

Appeal from Circuit Court, Monroe County; H. Pierre Branning, judge.

COUNSEL

W. Hunt Harris, of Key West, for appellant.

H. H Taylor, of Key West, for appellees.

OPINION

WEST, J.

This is the second appeal of this case to this court. It is a suit to foreclose a mortgage on real estate. The former appeal was from an order overruling exceptions to the answer. This order was affirmed. Wolkowsky v. Kirchick, 81 Fla. 415, 88 So. 261. The case having been remanded, it proceeded to final hearing upon various stipulations of counsel and testimony taken upon the issues presented. There was a final decree in favor of defendants, from which this appeal is taken.

The answer admits the execution of the mortgage and its validity but denies that the indebtedness was due and the mortgage foreclosable at the time the suit was instituted, The defense interposed is that prior to the institution of the suit an agreement had been entered into between the mortgagee and mortgagors, by the terms of which the due date of the note was extended to a time later than the institution of the suit, and that the mortgagee had waived the covenant of the mortgagor to insure the premises with loss payable to the mortgagee, and therefore the debt was not due, nor was the mortgage foreclosable because of any breach of its conditions by the mortgagors at the time the suit was instituted.

This was an affirmative defense, and the burden of establishing it by a preponderance of the evidence rested upon the defendants. American Securities Co. v. Goldsberry, 69 Fla. 104, 67 So. 862, 1 A. L. R. 15. It is equivocally affirmed by the defendants with slight, if any corroboration. It is directly and unequivocally denied by the complainant. An examination of the record convinces us that the burden resting upon the defendants has not been sustained. The evidence offered is not of the character required in this class of cases. Where the decree of the chancellor is not supported by the evidence, it will be reversed by this...