Price v. Metsger , 20 Fla. 683 ( 1884 )

The Chiee-Justice delivered the opinion of the court.

The bill shows, and the plea and answer admit the execution of the note and mortgage by Metsger, which mortgage conveyed to complainant certain lands in township twenty-two, of range thirty-five in Brevard county, being 169.78-100 acres. A decree pro confesso was entered, after notice by publication as to Metsger, the mortgagor. The bill charges that after the execution of the mortgage, Metsger conveyed this land to Sackett, subject to the lien of the mortgage.

The plea and answer of Sackett do not deny that the mortgaged land was conveyed by Metsger to Sackett, subject to the mortgage lien ; but aver that by the agreement between Metsger and complainant the note and mortgage were given to secure payment for the complainant’s professional services as a lawyer for defending Morris Metsger, and that the compensation was to be but five hundred dollars in case Morris was convicted of murder in the first degree, and that Morris was not acquitted, but was convicted and hung.

The defendant, Sackett, alleges by plea that he purchased of Metsger another parcel of land in township twenty-two and range thirty-six, containing 146.90-100 acres, which Metsger had entered as a homestead, and afterwards purchased from the United States. This is not the same land described in the mortgage, nor is it anywhere alleged in the pleadings to be the same land intended to be mortgaged. The defendants’ plea, therefore, relating to the homestead land in range thirty-six, sets up no matter of defence to the bill.

If the defendant, Sackett, was, as the bill alleges, the purchaser of the mortgaged land, subject to the lien of the mortgage, such land is chargeable, at least to the extent of the five hundred dollars which Sackett 'says was the amount due to complainant. If Sackett was not the purchaser of the mortgaged land, he has no standing entitling him to plead that the whole amount of the mortgage debt is not due from Metsger, as it does not concern him.

There having been no plea or answer showing any fact going to defeat the foreclosure of the mortgage upon the land in range thirty-five, it is plain that the decree that the plea was a good plea, and that the bill therefore be dismissed, must have been produced by a misapprehension in respect to the pleadings.

In the present state of the pleadings, the other questions presented by counsel are not involved in the case.

The decree is reversed.