Williams v. Johnson

Supreme Court of Florida

Williams v. Johnson

146 So. 898, 109 Fla. 296

DecidedMarch 28, 1933

StatusPublished

This text of 146 So. 898 (Williams v. Johnson) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Williams v. Johnson, 146 So. 898, 109 Fla. 296 (Fla. 1933).

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Whitfield, P. J.

Proceedings to enforce a mortgage lien to secure the payment of notes,-were brought by D. P. Johnson against Eugene L. Williams and his wife, mortgagors, and J.. N. Holms, it being alleged that any claim of the latter against the property is subordinate to the complainant’s lien.

The mortgagors by answer admitted the execution of the notes and mortgage but deny indebtedness to ■ complainant in any sum “except upon the condition of the fulfillment by Complainant of certain provisions of a contemporaneous written agreement between the Complainant and the Defendant Eugene L. Williams, a true copy of which agreement is hereto attached and made a part hereof as is set forth herein haec verba; * that the said agreement provided for the execution of the notes and mortgage, and the same were executed and left in escrow together with the said agreement, and that all of said instruments were'a part of one and the same transaction.

A breach of the agreement is averred “wherefore Defendants say that the consideration for the aforesaid notes and mortgage has wholly and completely failed.”

• In the same answer “defendants deny each and every allegation of the bill of complaint that is not herein directly *298 confessed or admitted; and for affirmative relief, say: That the mortgage and notes were given as a part of the purchase price of the lot described in the bill of complaint; and that the execution of the deed by Complainant and the mortgage and notes by Defendants, were according to an agreement between Complainant through his duly authorized agent and attorney Walter J. Johnson, and Defendant Eugene L. Williams, which is the same agreement heretofore referred to, a. copy of which is hereto attached and made a part hereof as if set forth herein haec verba.”

The averments of the answer and the contract state mutual agreements not under seal; and the answer avers facts stating performance of the agreement by the defendants and non-performance of the agreement by the complainant; which averments were not subject to the demurrer interposed thereto; therefore the demurer to the aswer filed under the statute, Chapter 13660, Acts of 1929, should have been overruled. A motion to dismiss the appeal taken by the mortgagors from the final decree for the complainant, was denied on the authority of Rabinowitz v. Houck, 100 Fla. 44, 129 So. 501.

Reversed.

Davis, C. J., and Terrell and Buford, J. J., concur.

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Whitfield, P. J.

Proceedings to enforce a mortgage lien to secure the payment of notes,-were brought by D. P. Johnson against Eugene L. Williams and his wife, mortgagors, and J.. N. Holms, it being alleged that any claim of the latter against the property is subordinate to the complainant’s lien.

The mortgagors by answer admitted the execution of the notes and mortgage but deny indebtedness to ■ complainant in any sum “except upon the condition of the fulfillment by Complainant of certain provisions of a contemporaneous written agreement between the Complainant and the Defendant Eugene L. Williams, a true copy of which agreement is hereto attached and made a part hereof as is set forth herein haec verba; * that the said agreement provided for the execution of the notes and mortgage, and the same were executed and left in escrow together with the said agreement, and that all of said instruments were'a part of one and the same transaction.

A breach of the agreement is averred “wherefore Defendants say that the consideration for the aforesaid notes and mortgage has wholly and completely failed.”

• In the same answer “defendants deny each and every allegation of the bill of complaint that is not herein directly *298 confessed or admitted; and for affirmative relief, say: That the mortgage and notes were given as a part of the purchase price of the lot described in the bill of complaint; and that the execution of the deed by Complainant and the mortgage and notes by Defendants, were according to an agreement between Complainant through his duly authorized agent and attorney Walter J. Johnson, and Defendant Eugene L. Williams, which is the same agreement heretofore referred to, a. copy of which is hereto attached and made a part hereof as if set forth herein haec verba.”

The averments of the answer and the contract state mutual agreements not under seal; and the answer avers facts stating performance of the agreement by the defendants and non-performance of the agreement by the complainant; which averments were not subject to the demurrer interposed thereto; therefore the demurer to the aswer filed under the statute, Chapter 13660, Acts of 1929, should have been overruled. A motion to dismiss the appeal taken by the mortgagors from the final decree for the complainant, was denied on the authority of Rabinowitz v. Houck, 100 Fla. 44, 129 So. 501.

Reversed.

Davis, C. J., and Terrell and Buford, J. J., concur.

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146 So. 898, 109 Fla. 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-johnson-fla-1933.

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