Opinion
Opinion filed May 29, 1933.
An appeal from the Circuit Court for Polk County, Harry G. Taylor, Judge.
Edwards Marchant and E. C. Wimberly, for Appellant;
Huffaker Edwards, for Appellee.
This case is before us on appeal from an order granting a motion to strike defendant's answer.
The suit was to foreclose a mortgage given to secure the final payment of purchase price of a certain orange grove. The answer of the defendant alleged that the mortgage and note, the payment of which the mortgage was given to secure, were obtained by fraud and deception in that the mortgagee and payee procured the delivery of the note and mortgage to such payee by a false and fraudulent representation as to the acreage contained in the orange grove, part payment for which these instruments were given to secure.
It was alleged in effect in the answer that it was agreed between the mortgagor and the mortgagee that the mortgagor would buy the grove on a price basis of $1,500.00 per acre and that the mortgagee assured the purchaser and mortgagor that the grove contained 104 acres, that the grove was bounded by the meander lines of certain lakes and that it was not possible for the purchaser and mortgagor to ascertain the exact acreage contained in the grove without a survey thereof, but that the mortgagor verily believed the statements made by the mortgagee that the grove contained 104 acres and, so believing, purchased the grove at that price, when in truth and in fact the grove contained only 83 acres and that the mortgagee and vendor of the grove then and there well knew at the time that such false representations were made that the same were false and untrue. That if the mortgagor and purchaser had known that the grove only contained 83 acres it would not have executed the mortgage and note, the payment of which is sought to be enforced, but would have agreed to pay only for 83 acres at $1500.00 per acre.
The note secured by the mortgage is for $25,000.00 The difference between the purchase price at $1500.00 per acre for 104 acres and the purchase price of 83 acres at $1500.00 per acre is $31,500.00, being $6,500 more than the amount of the note and mortgage.
We think the allegations of the answer constitute a good defense under the opinion and judgment of this Court in the case of Firstbrook v. Buzbee, et al., 101 Fla. 867, 132 So. 673, and cases there cited.
The order appealed from should, therefore, be reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.
Reversed.
WHITFIELD, P. J., and BROWN and BUFORD, J. J., concur.
DAVIS, C. J., and ELLIS and TERRELL, J. J., concur in the opinion and judgment.