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The appellees, whom we will hereafter refer to as the complainants, filed their bill of complaint for the foreclosure of a mortgage. The appellants, Adelaide V. Moses, Annie D. Washington and Maude W. Brewer, the mortgagors, filed their answer to the said bill admitting the execution of notes and mortgage, but denying the defaults as alleged in the bill of complaint. They also, alleged that the terms and conditions of the notes and mortgage were abrogated and superseded by an agreement entered into on the 17th day of December, 1926, with M. L. Woodward, assignor, of an undivided one-half of the said notes and mortgage, and Isabella Levi, by and through her husband as her agent, whereby the payments due and to become due on said mortgage were extended for a period of two years; and they say that subsequent to the said date on,
to-wit, 31st day of October, 1927, they were in default in the payment of the interest due on the mortgage and that they entered into an agreement with the said Woodward "who was the owner of an undivided interest in the said mortgage indebtedness," whereby the mortgagees waived the default and agreed that the said Woodward should have the said right to take possession of the said premises and collect the rents and profits thereof, and apply the same (1) to the payment of taxes and upkeep of the property, (2) to the payment of interest on a first mortgage, (3) to the payment of interest on the mortgage in suit, and (4) the balance to be applied to the payment of the principal of the first mortgage until said mortgage was paid, and then to the payment of the principal of a second mortgage; and that said rents and profits were to be taken in lieu of all payments due and to become due on said mortgage. It was alleged further, that the possession of the mortgage premises was delivered to the said Woodward under and by virtue and in accordance with the said agreement, but that said Woodward and Isabelle Levi breached and violated the agreement.
After the answer was filed, the complainants, by leave of the court, amended their bill by adding the following, designated as paragraph 9:
"And your orators aver that the defendants, Adelaide V. Moses, Annie D. Washington and Maude W. Brewer, pretend as an excuse for their failure to pay the sums of money due by your Orator's mortgage and to comply with the covenants in said mortgage, but cannot be heard to say, that there is in force and effect an agreement whereby the time for the payment of your Orator's mortgage was extended, and whereby the said M. L. Woodward was put in possession of the mortgaged premises to collect the rents and profits therefrom and apply the same as follows: (1) to the payment
of taxes and upkeep of the property, (2) to the payment of interest on the first mortgage, (3) to the payment of interest on the second mortgage, and (4) the balance to be applied to the payment of the principal of the first mortgage until the said mortgage was paid, and then to the payment of the principal of the second mortgage, and whereby it was agreed and understood that said rents and profits were to be taken in lieu of all payments due and to become due on said mortgage; for, on the other hand, if such an agreement was made, your Orators state the fact to be that while the said M. L. Woodward was, in pursuance of said agreement, in possession of the mortgaged premises, to-wit, the _____ day of January, 1929, the defendants, Adelaide V. Moses, Annie D. Washington, and Maude W. Brewer, did abandon and renounce said extension agreement, did enter into, have ever since been, and are now, in, possession of said mortgaged premises, and have ever since been, and are now appropriating the rents and income therefrom to their own use."
This amendment was demurred to specially upon the grounds: (1) that it neither admits nor denies that there was an agreement between the said parties modifying the mortgage, and (2) that the paragraph shows on its face that the remedy of the complainants is to enforce said agreement, and not a foreclosure. This demurrer was overruled by the Court and the appellants have assigned as error the order of the court thereon.
Inasmuch as the first ground of demurrer is not argued in the brief of the appellants, we will disregard it. The second ground is based upon the assumption that the amendment contains an allegation that the agreement had been made. An inspection of the amendment discloses that it is not alleged that the agreement had been entered into between
the parties. It merely avers that certain named defendants "pretend, as an excuse for failure to pay" the sums due * * * that there is in fact an agreement * * * "but, on the other hand, if such an agreement was made, etc." It is apparent that the pleaders avoided making an allegation setting up an agreement between the parties, but if we assume that it did set up such an agreement, as is contended by the appellants, we are unable to see wherein the amendment adds to or detracts from the statement of the complainants' case as shown by the bill. It merely shows that the complainants sought to anticipate what the said defendants in their answer rely upon as defense to the suit, and to excuse the same.
As a general rule, the plaintiff's initial pleading need and should not, by its averments, anticipate a defense thereto, and negative or avoid it. 49 C. J. 149. See also, Hazen v. Cobb-Vaughan Motor Company, 96 Fla. 151, 117 So.2d 853.
"If the pleading itself states a cause of action, the fact that it also attempts to negative or avoid a defense is not a fatal defect, but allegations made for this purpose are immaterial and may be treated as surplusage, unless defendants wish to rely upon them, in which case he will be relieved from specifically setting up his defense and may accept the issue presented by the plaintiff." 49 C. J. 151.
The amendment could have been stricken and the bill would have been a good pleading. 49 C. J. 84. See also, Kneeland v. Tampa N. R. Co., 94 Fla. 702, 116 So.2d 48; Stinson v. Prevatt,84 Fla. 416, 94 So.2d 656.
"While it (surplusage) may be properly stricken out on motion it does not render a pleading subject to a demurrer, either general or special." 49 C. J. 86.
The court committed no error in overruling the demurrer to the amendment to the bill.
Appellants also assign as error, the overruling of exceptions to the master's report finding that complainants had, by competent evidence, sustained the allegations of the bill, and that the equities were with the complainant, and in support of this assignment, it is contended that the complainant Eliza M. Woodward, did not show that she had any interest in the notes in suit, that the notes were filed in evidence subject to the condition that the "indorsement and assignment" be shown, that the evidence shows that the mortgagees took charge of the mortgaged premises to collect the rents and apply the same to the upkeep of the property and in payment of the indebtedness, and, therefore a novation of the mortgaged indebtedness, and that complainants failed to prove that the mortgagors had abandoned and renounced the alleged extension agreement, and have ever since been in possession of the premises and appropriating the rents and income therefrom.
The complainants alleged and proved that M.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The appellees, whom we will hereafter refer to as the complainants, filed their bill of complaint for the foreclosure of a mortgage. The appellants, Adelaide V. Moses, Annie D. Washington and Maude W. Brewer, the mortgagors, filed their answer to the said bill admitting the execution of notes and mortgage, but denying the defaults as alleged in the bill of complaint. They also, alleged that the terms and conditions of the notes and mortgage were abrogated and superseded by an agreement entered into on the 17th day of December, 1926, with M. L. Woodward, assignor, of an undivided one-half of the said notes and mortgage, and Isabella Levi, by and through her husband as her agent, whereby the payments due and to become due on said mortgage were extended for a period of two years; and they say that subsequent to the said date on,
to-wit, 31st day of October, 1927, they were in default in the payment of the interest due on the mortgage and that they entered into an agreement with the said Woodward "who was the owner of an undivided interest in the said mortgage indebtedness," whereby the mortgagees waived the default and agreed that the said Woodward should have the said right to take possession of the said premises and collect the rents and profits thereof, and apply the same (1) to the payment of taxes and upkeep of the property, (2) to the payment of interest on a first mortgage, (3) to the payment of interest on the mortgage in suit, and (4) the balance to be applied to the payment of the principal of the first mortgage until said mortgage was paid, and then to the payment of the principal of a second mortgage; and that said rents and profits were to be taken in lieu of all payments due and to become due on said mortgage. It was alleged further, that the possession of the mortgage premises was delivered to the said Woodward under and by virtue and in accordance with the said agreement, but that said Woodward and Isabelle Levi breached and violated the agreement.
After the answer was filed, the complainants, by leave of the court, amended their bill by adding the following, designated as paragraph 9:
"And your orators aver that the defendants, Adelaide V. Moses, Annie D. Washington and Maude W. Brewer, pretend as an excuse for their failure to pay the sums of money due by your Orator's mortgage and to comply with the covenants in said mortgage, but cannot be heard to say, that there is in force and effect an agreement whereby the time for the payment of your Orator's mortgage was extended, and whereby the said M. L. Woodward was put in possession of the mortgaged premises to collect the rents and profits therefrom and apply the same as follows: (1) to the payment
of taxes and upkeep of the property, (2) to the payment of interest on the first mortgage, (3) to the payment of interest on the second mortgage, and (4) the balance to be applied to the payment of the principal of the first mortgage until the said mortgage was paid, and then to the payment of the principal of the second mortgage, and whereby it was agreed and understood that said rents and profits were to be taken in lieu of all payments due and to become due on said mortgage; for, on the other hand, if such an agreement was made, your Orators state the fact to be that while the said M. L. Woodward was, in pursuance of said agreement, in possession of the mortgaged premises, to-wit, the _____ day of January, 1929, the defendants, Adelaide V. Moses, Annie D. Washington, and Maude W. Brewer, did abandon and renounce said extension agreement, did enter into, have ever since been, and are now, in, possession of said mortgaged premises, and have ever since been, and are now appropriating the rents and income therefrom to their own use."
This amendment was demurred to specially upon the grounds: (1) that it neither admits nor denies that there was an agreement between the said parties modifying the mortgage, and (2) that the paragraph shows on its face that the remedy of the complainants is to enforce said agreement, and not a foreclosure. This demurrer was overruled by the Court and the appellants have assigned as error the order of the court thereon.
Inasmuch as the first ground of demurrer is not argued in the brief of the appellants, we will disregard it. The second ground is based upon the assumption that the amendment contains an allegation that the agreement had been made. An inspection of the amendment discloses that it is not alleged that the agreement had been entered into between
the parties. It merely avers that certain named defendants "pretend, as an excuse for failure to pay" the sums due * * * that there is in fact an agreement * * * "but, on the other hand, if such an agreement was made, etc." It is apparent that the pleaders avoided making an allegation setting up an agreement between the parties, but if we assume that it did set up such an agreement, as is contended by the appellants, we are unable to see wherein the amendment adds to or detracts from the statement of the complainants' case as shown by the bill. It merely shows that the complainants sought to anticipate what the said defendants in their answer rely upon as defense to the suit, and to excuse the same.
As a general rule, the plaintiff's initial pleading need and should not, by its averments, anticipate a defense thereto, and negative or avoid it. 49 C. J. 149. See also, Hazen v. Cobb-Vaughan Motor Company, 96 Fla. 151, 117 So.2d 853.
"If the pleading itself states a cause of action, the fact that it also attempts to negative or avoid a defense is not a fatal defect, but allegations made for this purpose are immaterial and may be treated as surplusage, unless defendants wish to rely upon them, in which case he will be relieved from specifically setting up his defense and may accept the issue presented by the plaintiff." 49 C. J. 151.
The amendment could have been stricken and the bill would have been a good pleading. 49 C. J. 84. See also, Kneeland v. Tampa N. R. Co., 94 Fla. 702, 116 So.2d 48; Stinson v. Prevatt,84 Fla. 416, 94 So.2d 656.
"While it (surplusage) may be properly stricken out on motion it does not render a pleading subject to a demurrer, either general or special." 49 C. J. 86.
The court committed no error in overruling the demurrer to the amendment to the bill.
Appellants also assign as error, the overruling of exceptions to the master's report finding that complainants had, by competent evidence, sustained the allegations of the bill, and that the equities were with the complainant, and in support of this assignment, it is contended that the complainant Eliza M. Woodward, did not show that she had any interest in the notes in suit, that the notes were filed in evidence subject to the condition that the "indorsement and assignment" be shown, that the evidence shows that the mortgagees took charge of the mortgaged premises to collect the rents and apply the same to the upkeep of the property and in payment of the indebtedness, and, therefore a novation of the mortgaged indebtedness, and that complainants failed to prove that the mortgagors had abandoned and renounced the alleged extension agreement, and have ever since been in possession of the premises and appropriating the rents and income therefrom.
The complainants alleged and proved that M. L. Woodward did, on the 10th day of August, 1926, about two months prior to the alleged agreement with him, transfer, assign and deliver to the complainant, Eliza M. Woodward, all of his right, title and interest in the mortgage and notes by an instrument under seal, which instrument was recorded on the 2nd day of November, 1926. While an endorsement of the notes would have carried with them (Evins v. Gainesville Nat. Bank, 80 Fla. 84, 85 So.2d 659; Northrup v. Reese, 68 Fla. 451, 67 So.2d 136, L.R.A. 1915F, 554; McClure v. Am. Nat. Bank, 67 Fla. 22, 64 So.2d 427; Taylor v. Am. Nat. Bank, 63 Fla. 631, 57 So.2d 678, Am. Cas. 1914 A, 309; Stewart v. Preston, 1 Fla. 10), an indorsement was not necessary to transfer the notes. They were assigned in connection with the mortgage securing them by a separate interest. Like an ordinary chose in action, a note may be transferred
by assignment. It is said by the authors in 8 C. J., Sec. 567, Article on Bills and Notes, that, "The practical difference between transfer by assignment and transfer by indorsement is: (1) the former makes the holder take subject to equities, and (2) the assignor, as distinguished from an indorser, in the absence of a statute to the contrary, is not liable to the assignee, except on his implied warranties." See also, 3 R. C. L., Sec. 196, p. 988 and 1 Wiltsie on Mortgage Foreclosure, 4th ed. 407. It is within the province of the trial court to regulate the order of the introduction of the evidence, and its discretion in such matters will be interfered with by an appellate court "only when an abuse thereof is clearly made to appear." Wilson v. Jernigan, 57 Fla. 277, 49 So.2d 44; Wilson v. Johnson, 51 Fla. 370, 41 So.2d 395; Stearns Culver Lbr. Co. v. Adams, 55 Fla. 394, 46 So.2d 156.
When the assignment from Woodward to his wife was admitted in evidence the relevancy of the notes was shown, and it would have been improper to exclude them from the evidence even on the motion of the defendants.
In this case, there is no basis for the application of the rule that "if evidence apparently incompetent only because its relevancy is not apparent, or because it is not the best evidence, is offered, the court may, in the exercise of its discretion, receive it conditionally, if counsel gives assurance that he will supply the necessary foundation afterward. If, however, such evidence is so conditionally received, and the necessary connecting evidence is not introduced, so as to show the relevancy of the admitted evidence, the court should exclude the evidence so received on its own motion; but if the failure to connect be not apparent or glaring, the objecting party should move to exclude." See Wilson v. Jernigan, supra; Pittman v. State, 51 Fla. 94,41 So. 385; 8 L.R.A. (NS) 509; Walker v. Lee, 51 Fla. 360,40 So. 881.
The answering defendants sought to set up in their answer a parol agreement with M. L. Woodward, which they allege was "ratified and approved by all the mortgagees."
By the common law, a contract under seal could not be modified or abrogated by a subsequent agreement unless the same was also under seal. 6 R. C. L. 915. In line with the common law rule, this Court has held that an instrument under seal cannot be modified by a subsequent executory parol contract. Tischler v. Kurtz, 35 Fla. 323, 17 So.2d 661. Appellants recognize the rule, but insist that in the case at bar, the terms and conditions of the mortgage were superseded and abrogated by the alleged parol agreement, because it had been executed by the parties thereto.
If we assume that the alleged agreement constitutes a good affirmative defense to the suit, if proved, we are unable to see how a reversal can be had upon the theory that the equities are not with the complainants. When an answer in an equity proceeding sets up an affirmative defense, the burden is upon the defendant to establish it. Lonergan v. Publes, 77 Fla. 188,81 So.2d 514. No witnesses were produced by the defendants to sustain the answer. M. L. Woodward, a witness for complainants, testified in effect that he was in possession of the property for a year; that he took charge of it under an agreement between the holder of the first mortgage and Adelaide V. Moses and Maude W. Brewer whereby an extension of two years on the principal of the first mortgage, which was owned by Plus R. Levi, was secured, upon conditions that six months interest would be paid every six months in advance, and that he, the witness, would be allowed to take possession of the property, collect the rents and out of such rents pay for insurance and repairs, pay taxes, then the interest on the first mortgage, after that, interest on the second mortgage and then if anything
was left, apply it to the principal of the first mortgage. Witness Stated further that he put a manager in the apartment by the name of Mrs. Martin, and that her daughter, a Mrs. Platt, was his, witness', stenographer; that approximately seven hundred dollars was on hand which he was holding for the holder of the first mortgage with the exception of some that he kept out for repairs, and when Levi came to his office for the money, witness discovered that it had been turned over to T. J. Dowdell, a representative of Mrs. Brewer, and that Mrs. Brewer had stated to him, the witness, that she had received her portion of the rent, and that he, the witness, no longer had anything to do with the apartment; that Mrs. Platt had entire charge of the apartment to collect the rents and turn them over to her, Mrs. Brewer, or her representative and gave as a reason why she interfered, that the agreement with the holder of the first mortgage had been breached; that Mrs. Washington also stated to him, the witness, that she had received a part of the money collected for the rent and that he, the witness, had nothing further to do with the management of the apartment and that Mrs. Platt, was in charge; that his records had disappeared from his office, and had been turned over to judge Dowdell by Mrs. Platt, but that approximately $900.00 had been collected. There was but one other witness that testified in the case, and his testimony related merely to solicitor's fees.
The evidence fails to show that the owners of the notes and mortgage, M. L. Woodward or Plus R. Levi, acting for them, entered into parol agreement with the mortgagors to the effect that the rents and profits derived from the apartment house were to be taken in lieu of all payments due and to become due on the mortgage debt involved in this litigation, or that Mrs. Levi and Mrs. Woodward ever
authorized or ratified any such agreement. Under the circumstances, the chancellor correctly decreed the equities to be with the complainants.
Only one other assignment of error is argued here, and that questions the propriety of the finding and decree of the amount due complainants on the principal sum and interest thereon. It is the contention of appellants that the appellees were mortgagees in possession of the mortgaged premises and were therefore bound to keep a strict account of the rents and profits, and until they had accounted for such rents and profits they were not entitled to a decree. The evidence furnishes no basis for such a contention. There is room for an inference that M. L. Woodward was the agent of the mortgagors to collect rents and disburse the same, but we are unable to find anything in the evidence that will support a statement that the holders of the mortgage in suit were in possession of the property covered by the said mortgage.
The decree of the lower court is affirmed.