Mayo v. Hughes

Citations

• 51 Fla. 495

Syllabus

<p>1. A failure of consideration should be directly, positively and unequivocally averred in order to impose the burden of proof on the complainant.</p> <p>2. Averments of a sworn answer must be as to matters of personal knowledge and must be directly and positively responsive to material allegations of the bill in order to be conclusive evidence in favor of the parties answering unless overcome by the testimony of two witnesses or by the testimony of one witness and corroborating circumstances.</p> <p>3. If proper averments in a sworn answer of a failure of consideration are direct, positive and certain they impose the burden of proof on the complainant, and if such averments are of personal knowledge and are directly responsive to the allegations of the bill, they may be conclusive evidence in favor of the parties answering unless overcome by the testimony of two witnesses, or the testimony of one witness corroborated by other circumstances; but direct, positive and certain averments of a failure of consideration which are sufficient to impose the burden of proof on the complainant, yet which are not directly responsive to the allegations of the bill, are not such evidence in favor of the parties answering as requires the complainant to produce more than the testimony of one witness.</p> <p>4 When the answer in á foreclosure proceeding denies none of the allegations of the bill and admits the consideration shown by the bill and exhibits, and sets up other consideration in addition thereto and avers the failure of a part of such additional considerations, and the testimony shows that the consideration alleged in the bill was the consideration for the mortgage, a decree of forclosure based on the consideration alleged in the bill and proven is not erroneous on the ground of failure of consideration for the mortgage.</p>