Bush v. Adams

Citations

• 22 Fla. 177

Syllabus

<p>1. If the part of an answer excepted to is relevant, or can have any influence in the decision of the suit either as to the subject matter of the controversy, the particular relief to be given, or as to the costs, it will not be held impertinent.</p> <p>2. An exception for impertinence must be supported in toio, and will fail if it covers any part of the answer which is relevant and material.</p> <p>3. An exception for impertinence cannot be taken to some of the material allegations of a particular defence, and exclude other material averments of the same defence. All the material allegations or paragraphs of the same defence must stand or fall together.</p> <p>4. Allegations of an answer will not be struck out as impertinent, unless it is especially clear that they are wholly immaterial or irrelevant. Where they are not clearly impertinent they should be retadned, and the court may do justice between the parties in the imposition of costs, at a subsequent stage in the cause.</p> <p>5. Where a person mortgages his land to secure the debt of another and dies, and the land is an asset of his estate, the mortgage is within the statute of non-claim, and must he presented to the administrator or executor within the statutory period to avoid the bar of such statute against an enforcement of the lion of the mortgage.</p> <p>6. The pendency of a suit of foreclosure at the death of such mortgagor is not a presentation or exhibition of the claim, within the meaning of the statue of non-claim; nor does a revivor of the suit against the personal representative after the statutory period has run, constitute a legal presentation, no effort at reviving having been made within such period.</p> <p>7. If a vendee of land, remaining in possession, buys in an outstanding incumbrance, he will not be permitted to set up an adverse title under it. The purchase enures to the benefit of the vendor’s title, and the vendee can only abate the unpaid purchase money, or in ease he has paid th