Hanley v. Bullard

Citations

• 80 Fla. 578
• 86 So. 439

Syllabus

<p>' 1. The five days’ notice of a motion to strike certain parts of an answer in chancery, deemed to be insufficient, as provided under Chapter 6907, Laws of 1917, may be waived by the party the sufficiency of whose answer is being thus tested by appearing and arguing upon the merits of the motion and by failure to make objection as to the sufficiency of notice at the proper time.</p> <p>2. In a suit to enforce a mortgage lien upon land to secure the purchase price of the lands and certain live stock an answer which undertakes to set up the defense of failure or partial failure of consideration of the notes which the mortgage was given to secure, by averring that the complainant did not at the time of the sale own a “great portion” of the live stock, is insufficient where the answer fails to aver in which manner and to what extent the defendant has suffered damage by such averred failure of consideration.</p> <p>3. Fraud averred to have been practiced by complainant in securing' a mortgage ■ lien is without merit' as¡ a defense to a foreclosure of the lien where no injury or damage to the defendant is shown to have resulted to him from such averred fraud.</p> <p>4. Where a mortgage is given to sécure the payment of three promissory notes and the provisions of the mortgage clearly show that it was the intention of the parties that the mortgagee should have the privilege of electing to treat the entire debt as due upon the failure of the maker of the notes to, pay .the first or second'note at maturity, the omission of the letter “s” from the word “note” appearing in the clauses referring to the indebtedness which the mortgage was given to secure will not defeat the mortgagee’s right under the mortgage to foreclose it for the entire debt upon1 the -failure of the maker to pay the note first becoming due.</p>