Peck v. Osteen

Liddor, J.: The first error complained of is the overruling of complainant’s exceptions to the defendant’s answer. These exceptions, as shown by the accompanying statement of the case, were in general terms, and only an allegation that the answer contained inconsistent defenses. There is no attempt at specification of the defenses which the complainant supposed were inconsistent with each other. The counsel for appellant in his brief says that in disposing of these exceptions “the court below should have looked at the whole answer to have ascertained whether or not contradictory defenses were contained therein.” We do not think such duty devolved upon the court. It was not its duty upon a bare suggestion that an answer contains inconsistent defenses, to devote itself to the task of ascertaining, -if it can, the particular defenses which the pleader regards as inconsistent. The pleader should have specifically designated and pointed out to the court the inconsistent defenses referred to. Exceptions are allegations in writing stating the particular point or matters with respect to which the complainant considers an answer insufficient, scandalous or impertinent. Beach’s Modern Equity Practice, sec. 406. They must not be too broad and general, and if they are thus faulty, are properly overruled. Ibid, sec. 420; Conway vs. Wilson, 44 N. J. Eq. 457, 11 Atl. Rep. 734. An objection taken to a whole answer is too general. Mutual Life Ins. Co. vs. Cokefair, 41 N. J. Eq. 142, 3 Atl. Rep. 686. The very purpose of an execution is to call the attention of the court to the matter excepted to, and such matters should be distinctly specified. Arnold vs. Slaughter, 36 W. Va. [431] 589, 15 S. E. Rep. 250. In Richardson vs. Donehoo, 16 W. Va. 685, text 704, the form of an exception to an answer is given, showing the particularity with which such exceptions should be framed, and the precision with which it* should state the portions of the answer excepted to. The second error alleged is, that the court erred in finding against the complainant upon the proofs of the •case. We will not enter into any detailed analysis of the proof. We will state only a few of the salient points upon which we rest our conclusions. It will be noted that the general tenor and effect of the defendant’s answer, as appears in the statement of the case, is that by reason of their illiteracy, they did not know and understand the object and import of the mortgage at the time of its execution, so as to be bound thereby. This defense, if available, should have been urged in the proceedings brought to foreclose the mortgage in question. The defendants have had their day in court, an opportunity to make such defense, and are concluded by the decree, that -they did execute a valid binding mortgage upon the property described therein and in the decree of foreclosure. That a valid mortgage upon some land was intended and executed between the parties is res judicata. Among other reasons impelling us to the opinion that the 80 acres referred to was omitted from the mortgage by mutual mistake are the following, viz: The defendants owned only 140 acres of land, all in one section according to the United States survey, in Bradford county, Florida, the whole comprising their homestead and farm. The mortgage as executed describes the same amount, 140 acres, all in the same section. The 80 acres alleged to have been inserted in [432] the mortgage by mistake did not belong to defendants at all, but lies immediately west of and adjoining the land owned by defendants, and which it is alleged was intended to be inserted in the mortgage in its stead. The only difference in the description of the two eighties is, that one is properly described as S. \ of N. W. £ of Sec. 4, and the other as S. of 1ST. E. \ of same section. The latter would have been the correct description in the mortgage. The only difference in the descriptions being, that in describing the quarter section in which the land was located, a W was used where an E should have been. The evidence does not show clearly that the mortgage was read and explained to the parties before or at the time of its execution as to the land embraced therein, but was understood by them to be a mortgage, and upon real estate, and a portion of the indebtedness for which said mortgage was given was money borrowed to pay purchase money upon the whole tract of 140 acres. After purchase by complainant at foreclosure sale the agent of complainant attempted to collect rent from defendants for the use of the premises. While they paid no rent, it does not appear that they denied liability for the same, but assigned other reasons for non-payment. The defendant, Reuben Osteen, says in one portion of his testimony that he supposed at the time he executed the mortgage that it embraced the land which the bill of complaint alleges was intended to be embraced therein, but in another portion of the same deposition says that such supposition arose after the execution of the mortgage. After the foreclosure sale the defendants abandoned the land and surrendered possession thereof to complainant, who was still in possession at the time of filing the bill of complaint. The 80 acres now in [433] question includes the dwelling and improvements formerly occupied by the defendants. The defendant, Martha Ann Osteen, at the time of the execution of the mortgage, stated that she hated to sign a mortgage on her own home. Considering all the evidence in connection with the stated circumstances, and recognizing how easy it is to make a mistake in the description of lands according to the United States survey, we are of the opinion that such mistake was made in the present case, and that it has been proven with the requisite measure of proof. This case is very similar in its facts to Greeley vs. DeCottes, 24 Fla. 475. While this court is always reluctant to disturb a decree of a chancellor upon the facts, it will do so when the evidence clearly shows that the decree is erroneous. Perez vs. Bank of Key West, 36 Fla. 467, 18 South. Rep. 590. The decree of the Circuit Court is reversed, with directions that a decree be entered granting the relief prayed for in the bill of complaint.