Wallace v. Cruit

Buford, J.

This was a suit to foreclose a mortgage. The-defendants in the court below, appellants here, J. W. Wallace and his wife, Caroline Wallace, executed the mortgage-sought to be foreclosed. The other parties defendant were made such in the court below because they had either acquired some interest in the property, or in the mortgage embracing the same property.

Neither of the defendants except J. W. Wallace had obligated to pay the indebtedness secured by the mortgage sought to be foreclosed.

We find no material error as disclosed by the record except that appearing in the final decree. The decree finds that there is due and owing from the defendants certain sums of money named in the decree and the decree further-orders'that the defendants should forthwith yield and pay unto the complainant certain sums of money named in the decree.

The decree further provides that the court should retain jurisdiction of the cause to settle other questions of which the court has jurisdiction, including that of the entry of deficiency decree in the event said property does not sell at. the sale for the amount of the decree.

There is no foundation in the bill of complaint or in the proof for a money decree against Colonial Properties, Inc., a Florida corporation, or against A. M. Henderson or his-wife, Lucille Henderson. Therefore, the decree should be reversed, with directions to the chancellor to enter a decree not inconsistent with .this opinion, and it is so ordered.

Reversed and remanded.

Whitfield, P. J., and Strum, J., concur. Terrell, C. J., and Ellis, J., concur in the opinion and judgment. Brown, .J., disqualified.