Otis v. McCaskill

Citations

• 51 Fla. 516

Syllabus

<p>1. An answer to a foreclosure setting up a partial failure of consideration casts the burden of proof upon the complainant.</p> <p>2. Where the consideration for a mortgage is the purchase price of a single mill, and contemporaneously the seller gives a bill of sale under seal describing the mill as one shingle mill complete, known as the W. mill with warranty of title and which mill shortly theretofore had been inspected by the purchaser and was then complete, but at the time of the sale was broken up and scattered, and the mill delivered to the purchaser was incomplete in essential particulars and the deficiency was promptly pointed out, there was error in denying the defense of partial failure of consideration.</p> <p>3. When the consideration for a mortgage upon realty is the purchase price of personalty, partial failure of consideration may be pleaded in a suit to enforce the mortgage lien. The principle announced in Reddick v. Mickler, 23 Fla. 335, 2 South. Rep. 698, does not control.</p>