William B. Wynn, Appellant, vs. Francis R. Ely, Appellee, 8 Fla. 232

BALTZELL, C. J., delivered the opinion of the Court.- This was a suit for the foreclosure of a mortgage under’ the statute providing a remedy in such cases. The objections raised in this Court are to rulings of the' Court below on preliminary points and as to the pleadings.- The first objection is thus stated in the record: “ Now at this day came the parties, by their attorneys, and the defendant, by his attorney, excepted to the notice, which exceptions were overruled by the Court.” In this Court exceptions have been taken, as well to the notice as to its service. In neither do we think there was error.

The law, which is a peculiar one, directs “ personal service of notice of the intention of the party to institute a suit to be served upon the mortgagor.” The notice here is signed, as well by the Clerk of the Court as the attorney giving notice of the filing of the petition for the foreclosure of the mortgage, with all necessary precision.

We cannot perceive that anything more was wanting, or that anything was not done which the law required. “ There was notice of the institution of the suit.” The service was, “ Executed the within writ by handing the defendant a copy at his residence.” This, we think, good as personal service to the party, and preferable to reading without a copy. If defendant had been unable to read, he might have had this done either by the officer or any one else. Plaintiff filed objections, which are termed pleas, presenting his defences.

There are four of these, on two of which, the first and fourth, issue was joined and a jury found their verdict, which it is unnecessary to notice, as the assignment of errors of the appellant is to the alleged error of the Court in ruling the demurrer to plaintiff’s replications. The other pleas adjudged bad are the second and third. We have had no little difficulty in ascertaining the different pleas, as they are not separated in such a manner as to be readily distinguished. Which is the second plea is not so manifest.

The answer alleges, that defendant was entitled to credits on the mortgage for about the sum of $600; that Day & Co., the assignors of the mortgage, are insolvent. The replication is, that Day & Co. are not insolvent. If this be the plea, we have no difficulty in declaring that it presents no defence to the suit. Day & Co. were not the owners or holders of the mortgage; they had assigned and transferred their right and interest to the plaintiff Ely.

If they had an equitable claim for a part of the proceeds when collected, provided an amount was received more than sufficient to pay Ely what was due him, how does this affect the defendant’s rights, or his defence? It is pretended that he could not safely pay Ely, or that his receipt would not be a discharge. The third plea is, that “ he is entitled to a farther credit upon said mortgage; that, in the spring of 1856, this defendant shipped Jack, one of the negro slaves mentioned in said mortgage, to Columbus, Q-eorgia, with the consent and approbation of the said mortgagees, J.

Day & Co., and with notice to petitioner Ely, who made no objection to the sale of said negro; that said negro Jack has been sold, and this defendant asks that the proceeds arising from said sale may be credited upon said mortgage debt.” No argument is necessary to show that there is not the slightest merit in this plea. If the proceeds of the sale had been paid to Ely, defendant could have plead payment simply, but a sale of part of the mortgage property, without any appropriation of the proceeds to the mortgaged debt, will scarcely amount to a payment.

Another assignment of error is that the mortgagees, Day & Co., should have been parties to the suit — the legal interest was in J. Day & Co., and they were the proper parties to commence the suit.

The statute under which this proceeding was had is a full answer to this. “It shall be lawful for any mortgagee or mortgagees to assign and transfer any mortgage made to him, her or them, and the person or persons to whom any mortgage may be assigned may also assign and transfer it, and they and their assigns and subsequent assignees may lawfully have, take and pursue the same means and remedies which any mortgagee can or may lawfully have, take or pursue for the foreclosure of any mortgage and for the recovery of the money secured thereby.” — Thompson Dig., 376.

Now, the record shows that the defendant was not only informed of the assignment, but admitted its validity, by making a payment of three thousand dollars, and by treating Ely as the owner and proprietor in other respects. Nor do we think the application for a continuance better sustained. “He can’t safely go to trial, because he has not taken the evidence to prove the indebtedness of J.

Day & Co. to him before the assignment which is set up in his first plea; that he did not take these for the reason that the issues were not joined, stating also that the witnesses reside in Apalachicola.” Now the statute directs the case to be decided at the first term, at which time the issues are to be made up, so that, obviously, the party should have been ready with his proofs.

But the character of this payment is not stated so as to entitle it to estimation, nor when or how it was made, through whose agency, whether he had a receipt or not for it, whether it was for money paid or cotton, or what else, is not stated. The plea itself fails to state the exact sum, and gives it as “ about $600.” Nor is the name of the witness given by whom he expects to prove the credit. It is not a little singular, too, that he had a continuance at the previous term of the Court for want of proof of this same and other items.

Now it would be a most improper and unusual indulgence to be extending continuances thus repeatedly asked for on the same grounds. ¥e think the Court below decided rightly in refusing to grant it. The judgment will be affirmed with costs.