Key West Wharf & Coal Co. v. Porter

Citations

• 63 Fla. 448

Syllabus

<p>Foreclosure of Mortgage — Demurrer to Whole Bill— SUBROGATION' — FORECLOSURE De NOVO WHEN NECESSARY Parties Have Been Omitted From First Foreclosure — Usury Cannot Be Set Up as a Defense to a Foreclosure Suit by a Party Who Has Assumed the Payment of ti-ie Mortgage, and Subsequent Purchasers Through Him Are Likewise Estopped to Make Such Defense— Estoppel.</p> <p>1. A general demurrer to the whole bill for want of equity should be overruled if there is any ground for equitable relief in the bill, and this even if there are any number of grounds of special demurrer to parts of the bill.</p> <p>2. The purchaser of property at a foreclosure sale for the full amount due on the decree of foreclosure, when, for any reason the foreclosure proceedings are imperfect, irregular or void, becomes subrogated to all the rights of the mortgagee in and to such mortgage and the indebtedness that it secured, and becomes thereby virtually an equitable assignee of such mortgage and of the debt that it secured, with all the rights of the original mortgagee, and becomes entitled to an action tie novo for the foreclosure of such mortgage against all parties holding junior encumbrances or the legal title, who had been omitted as parties to such original foreclosure proceedings under which he bought.</p> <p>3. Where a mortgagee holds two or more mortgages upon 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.</p> <p>4. A subsequent purchaser who expressly assumes the payment of prior existing mortgages upon property that he buys, as part of the purchase price for such property, is estopped to defend against the foreclosure of such mortgage either upon the ground of usury or upon the ground of failure or want of consideration therefor, or upon any other ground.</p> <p>5. A party claiming title under one who is estopped, will also be bound by the estoppel.</p> <p>6. The courts in foreclosure proce