Watkins v. Herring , 95 Fla. 690 ( 1928 )

Mortgage foreclosure proceedings were brought by Irene Herring against Henry Donaldson, W. R. Watkins and W. R. Watkins, Trustee for L. R. Curry, and L. R. Curry and his wife, Rose Curry. The mortgage debt was represented by notes signed by Henry Donaldson, Trustee. The bill of complaint alleges that "one W. R. Watkins, Trustee for L. R. Curry, purchased the above described property, as per deed recorded in deed book No. 586, page No. 217, and in doing so assumed and agreed to pay the above described mortgage."

W. R. Watkins demurred to the bill of complaint on the ground that there is a misjoinder of parties as to the defendant, W. R. Watkins. The demurrer was overruled and W. R. Watkins appealed.

The bill of complaint alleges that "W. R. Watkins, Trustee for L. R. Curry," purchased the property, "and in doing so assumed and agreed to pay the above described mortgage." This allegation is not negatived by any other part of the bill of complaint; and it is manifestly sufficient as against the demurrer to show that W. R. Watkins is a proper party in the suit.

If W. R. Watkins with the added personal description "Trustee for L. R. Curry," did assume and agree to pay the mortgage as alleged, the undertaking as alleged in this record is apparently personal, and may not be dependent upon the nature of the title taken by W. R. Watkins when he "purchased" the property.

Affirmed.

WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur.

ELLIS, C. J., AND STRUM AND BROWN, J. J., concur in the opinion and judgment.