Carter v. Gilbert

Buford, J. In this case one Gilbert entered into a contract with one Merrick for the purchase of certain real estate by Gilbert from Merrick. While the contract remained executory Gilbert died. Appellee became administratrix of the estate of Gilbert. As a part of the estate she took .into her possession the executory contract. Thereafter the appellee, as administratrix, assigned the contract by a separate contract under seal with full warranties of title embraced therein, to the appellant and in consideration therefor received some cash and a mortgage to secure the balance of the consideration for the assignment of the contract. There was default in the payment of the debt secured by the mortgage. Appellee filed suit to foreclose the mortgage. Appellant attempted to defend upon the theory that the administratrix was without authority to assign the contract and that, therefore, there was a failure of consideration for which the mortgage was given. The decree was in favor of the complainant in the court below and the defendant appealed. The contract entered into between Merrick and Gilbert was an executory contract and was a chose in action in the hands and possession of Gilbert at the time of his death. In 11 R. C. L. 347 the author says: “An executor or administrator becomes for most purposes the owner of the legal title to the goods of his testator, and may dispose of them as if they were his own, except that he cannot bequeath them, nor can they be taken on execution for his debt. His powers *1058 •with regard to the sale or pledge of assets are much broader than those of a trustee, since normally he receives the actual title and is presumed to have the right to transfer it. At common law and in most jurisdictions today, he has absolute power of disposal over the whole personal property including choses in action. ’ ’ The record shows that when the contract for' the purchase was assigned and the mortgage given to secure the balance of the payment for such assignment, the appellant went into possession of the property as the result of such transaction and that she has at all times remained in possession of the property. The law is well settled in this State that: “In foreclosure proceedings against a mortgagor in possession under a. deed from the mortgagee with full warranty of title, the mortgagor cannot set up an outstanding title or breach of covenants as a defense to the bill to foreclose the mortgage given to secure the purchase money when there has been no actual or constructive eviction of the mortgagor or fraud or insolvency on the part of the mortgagee.” See Paine v. Kemp, 77 Fla. 531, 82 So. R. 53, and cases there cited. Brewster v. Gage Advance Opinions U. S. Supreme Court Jan. 20, 1930, 74 Law Ed. 183. Such rule is applicable to the instant case and the attempted defense of total failure of consideration was not available to the defendant in foreclosure. There were other assignments of error, all of which we have considered, but no question appears to be raised by such assignments of error which has not been hereto *1059 fore settled by decisions of this Court adversely to the contentions of the appellant. The decree appealed from should be affirmed aud it is' so ordered. Affirmed. Terrell, C. J., and Whitfield, J., concur. Ellis, J., concurs in the conclusion reached. Strum and Brown, J. J., dissent in part.