Key West Wharf & Coal Co. v. Porter

Taylor, J., (after stating the facts.)— There was no error in the order overruling the demurrers of the defendants to the bill. The demurrers were to the bill as awhole, The established rule here is that a general demurrer for want of equity will be overruled, if there is any ground for equitable relief stated in the bill, and this even if there are any number of grounds of special demurrer. Johnson v. McKinnon, 45 Fla. 388, 34 South. Rep. 272; Hull v. Burr, 58 Fla. 432, 50 South. Rep. 754; Futch v. — 480 — Adams, 47 Fla. 257, 36 South Rep. 575; Lindsley v. McIver, 51 Fla. 463, 40 South. Rep. 619; Roberts v. Cypress Lake Naval Stores Co., 58 Fla. 514, 50 South Rep. 678; Holt v. Hillman-Sutherland Co., 56 Fla. 801, 47 South. Rep. 934; City of Orlando v. Equitable Building & Loan Ass’n. 45 Fla. 507, 33 South Rep. 986. The complainant in this bill when she became the purchaser of the mortgaged property at the sale under the foreclosure decree of the Lewis. mortgage for the full amount due upon such decree, when, for any reason, the foreclosure proceedings are void, thereby became subrogated to all the rights of the mortgagee Lewis in and to such mortgage and the indebtedness that it secured. She became thereby virtually an equitable assignee of such mortgage and of the debt that it secured, with all the rights of the original mortgagee. Burns v. Hiatt, 149 Cal. 617, 87 Pac. Rep. 196; McCague v. Eller, 77 Neb. 531, 110 N. W. Rep. 318, 124 Am. St. Rep. 863; Wiltsie on Mortgage Foreclosure, p. 148 and cases there cited, and p. 104, section 92. Becoming thus the equitable assignee of the Lewis mortgage she became entitled to an action de novo for the foreclosure thereof against all parties holding junior encumbrances or the legal title to any part of the mortgaged property, who had been omitted as parties to such original foreclosure proceedings under which she bought. Wiltsie on Mortgage Foreclosure, p. 104, section 92, and authorities there cited; Dodge v. Omaha & S. W. R. Co., 20 Neb. 276, 29 N. W. Rep. 936; Jordan v. Sayre, 24 Fla. 1, 3 South. Rep. 329, S. C. 29 Fla. 100; 10 South. Rep. 823. And haying become the owner by assignment and transfer to her of the second mortgage made by the original mortgagor John J. Philbrick to Eduardo H. Gato as against these answering defendants she has the — 481 — right also to foreclose the Gato mortgage, and to do so in the same bill that she seeks to foreclose the Lewis mortgage. Where a mortgagee holds two or more mortgages npon the same premises they should both be set out in the complaint and foreclosed in the same action, only one suit to foreclose both being proper. Wiltsie on Mortgage Foreclosure, p. 323, and authorities there cited; Pierce v. Balkam, 2 Cuch. (Mass.) 374. From what has been said it will be seen that there was‘abundant equity in the bill, and the court below correctly overruled the general demurrers thereto. The defendants’ pleas and the complainant’s exceptions to the answers of the defendants present the question as to .whether these defendants have the right to set up the defense of usury as to the Lewis mortgage; and the defense of a failure or want of consideration for the Gato mortgage. Charles A. Murphy, from and through whom both of the defending defendants derived their title and claim to a portion of the tract originally mortgaged to Lewis and Gato, derived his rights and title thereto by means of the purchase thereof at a Master’s sale under a decree of foreclosure of mortgage in the Federal Court in favor of the Laflins against W. J. H. Taylor, who had purchased from the Laflins such portion of said, tract, and who had, as a part of his purchase price for said property, expressly agreed to assume and to pay the said two mortgages to Lewis and Gato. It is well settled that a subsequent purchaser who expressly assumes the payment of prior existing mortgages upon property that he buys, as pat of the purchase price for such property, is estopped to defend against such mortgages either npon the ground of usury or on the ground — 482 — of failure or want of consideration therefor, or upon any other ground. Stuckey v. Middle States Loan & Building Construction Co., 61 West Va. 74, 55 S. E. Rep. 996, 128 Am. St. Rep. 977; Crawford v. Edwards, 33 Mich. 354; Miller v. Thompson, 34 Mich. 10; Parkinson v. Sherman, 74 N. Y. 88, 30 Am. Rep. 268; Clapp v. Halliday, 48 Ark. 258, 2 S. W. Rep. 853; Haile v. Nichols, 16 Hun. (N. Y.) 37; Green v. Houston, 22 Kan. 35; Johnson v. Parmely, 14 Hun. (N. Y.) 398; Pidgeon v. Trustee of Schools, 44 Ill. 501; McConihe v. Fales, 107 N. Y. 404, 14 N. E. Rep. 285; Gramer v. Lepper, 26 Ohio St. 59; Conover v. Hobart, 24 N. J. Eq. 120; Sellers v. Botsford, 11 Mich. 59; Cheney v. Dunlap, 27 Neb. 401, 43 N. W. Rep. 178, 5 L. R. A. 465; Alt v. Banholder, 36 Minn. 57, 29 N. W. Rep. 674; Stephens v. Muir, 8 Ind. 352; Hough v. Horsey, 36 Md. 181, 11 Am. Rep. 484; Burlington Mut. L. Ass’n v. Heider, 55 Iowa, 424, 5 N. W. Rep. 578; 7 N. W. Rep. 686; Trusdell v. Dowden, 47 N. J. Eq. 396, 20 Atl. Rep. 972; Nance v. Gregory, 6 Lea (Tenn.) 343, 40 Am. Rep. 41; 1 Jones on Mortgages, Secs. 744, 745; 3 Pomeroy’s Eq. Juris. Sec. 1206; Tidball v. Schmeltz, 77 Kan. 440, 94 Pac. Rep. 794, 127 Am. St. Rep. 424. It is well settled also that a person claiming title under one who is estopped, will also be bound by the estoppel. Sikes v. Basnight, 2 Dev. & Bat, (N. C. Law) 157; Conkling v. Sesor Sewing Machine Co., 55 Howard’s Prac. (N. Y.) 269; McGravey v. Remson, 19 Ala. 430; Kennedy v. Brown, 61 Ala. 296; Hasenritter v. Kirchhoffer, 79 Mo. 239. Under the rule last announced W. J. H. Taylor being estopped from contesting the Lewis and Gato mortgages on the ground of usury or upon any other ground touching the validity of said mortgages, Charles A. Murphy and the answering defendants who claim through him are likewise estopped from — 483 — contesting said mortgages on any or either of said grounds. The doctrine of estoppel applies with great force in this instance because the interest of W. J. H. Taylor in the land, that was purchased by Murphy, at the foreclosure sale', was acquired by him, Taylor, upon the express consideration that he should pay the Lewis and Gato mortgages — and when Murphy bought Taylor’s interest under the foreclosure of the mortgage made by Taylor to the Laflins he took such interest burdened with the estoppel resting upon Taylor to question the validity of said Lewis and Gato mortgages upon any ground whatsoever. There is no merit in the contention, coming as it does from these answering defendants, to the effect that the Gato mortgage became extinguished by the decree of foreclosure of the senior mortgage of George Lewis and the sale thereunder. This contention may have had some force as between Lewis and Gato in so far as their rights under the respective mortgages were concerned, but it has no force when applied to the status of the answering defendants herein; they were not parties to the proceedings for foreclosure of the Lewis mortgage and are in no way either directly or indirectly affected thereby. As to them and their rights and liabilities the case stands just as though said foreclosure proceedings of the Lewis mortgage had never been had. The Gato mortgage having-been acquired by the complainant by purchase and she being subrogated to all the rights of George Lewis,, she the complainant comes into this case as the owner of a first and second mortgage as against these answering defendants, both of which mortgages their interests in the mortgaged land-is bound for, and in order to redeem such interests they will be compelled to 'pay the full amount of both mortgages. Neither is there any merit in the — 484 — contention of the defendants that there should be an ascertainment of the proportionate value of the portions of the land owned by them and that they be allowed to redeem from these two mortgages by paying the proportionate value of their respective portions thereof. Their portions of said land as well as all the residue of said mortgaged tract is bound for the payment of the whole of both mortgages, and the courts have no power to release any part of the land from the lien of the mortgages by affixing thereto a sum, less than the entire sum of the mortgages, which when paid shall release such part from the lien of the mortgages. To redeem their portions of the land from these two mortgages they will be required to pay the whole amount due upon both mortgages. McGough v. Sweetser, 97 Ala. 361, 12 South. Rep. 162; Martin v. Fridley, 23 Minn. 13; Evans v. Kahr, 60 Kan. 719, 57 Pac. Rep. 950; 58 Pac. Rep. 467. We find no error in the record, and the orders appealed from are hereby affirmed at the cost of the appellants. Whitfield, 'C. J. and Shackleford, Cockrell and ■ Hocker, J. J., concur.