said land be sold, and the proceeds applied to such payment.

A decree pro confesso was entered against F. Tuly Wade, and L. E. Wade, individually and as trustee for the minor children, filed a demurrer, which was overruled. He then individually and as trustee answered, and therein stated that it was not true, as alleged, that on the 7th of August, 1890, complainant owned the N. 1⁄2 of the lot described in her bill; that it was not true, as alleged, that on the 7th day of August, 1890, defendant Leonidas E. Wade agreed to purchase said property from complainant, or that he agreed to pay her for said property the sum of $2,000, or any other sum of money; that it was not true, as alleged, that in pursuance of an agreement with defendant Leonidas E. Wade, and at his request and instruction, complainant conveyed said premises to his wife, F. Tuly Wade, on August 7, 1890. It is admitted that complainant executed two deeds to F. Tuly Wade, wife of L. E. Wade, on August 7, 1890, but it is denied that either was executed in pursuance of the agreement set forth in complainant's bill. It is admitted that on the 1st of September, 1890, defendant L. E. Wade executed and delivered to complainant two promissory notes for $250 and $640.75, respectively, due one day after date, and apparently executed by F. Tuly Wade; but it is alleged not to be true that the sum of money evidenced by said notes, or any part thereof, was for purchase money of said property, or that defendants Leonidas E. Wade and F. Tuly Wade, or either of them, agreed with complainant, in order to induce her to retain said notes, that their payment should be secured by a vendor's lien on said premises, and it is denied that they were retained by complainant with such understanding and agreement. It is denied that said notes, or either of them, were for purchase money, or complainant had or has any lien on said premises for purchase money. The deeds from Leonidas E. Wade and wife, F. Tuly Wade, to W. P. Ward, and from the latter to Leonidas E. Wade, trustee, with the alleged stipulations therein, are admitted; but it is denied that either of said deeds was without consideration, or that they were a device of defendant L. E. Wade to hinder and prevent complainant from enforcing payment due her upon said notes. There was also the general traverse in the answer.

An answer of the minors, by a guardian ad litem, claimed protection for them on account of their age, and submitted their rights to the consideration of the court, with prayer for strict proof of the matters alleged in the bill.

Replications were filed, evidence taken for both parties, and upon final hearing the court dismissed the bill, from which decree complainant has appealed.

A sufficient statement of the facts will appear in the opinion.

J. M. Barrs and H. B. Philips, for appellant. A. W. Cockrell & Son, for appellees.

The

MABRY, J. (after stating the facts). main contention in support of the decree, and the one, evidently, upon which it was based in the lower court, is that the complainant, Rosanna S. Lucas, under the ruling in McKeown v. Collins, 38 Fla. 276, 21 South, 103, lost or waived her vendor's lien on the land which she seeks by her bill to charge with purchase money. Testimony was introduced before the master on the part of defendants tending to establish an offset in favor of Leonidas E. Wade for board of complainant to an amount equal to her alleged purchasemoney demand, if not larger, but the court excluded this evidence in reaching a final decision. The answers do not set up as a defense that complainant waived her vendor's lien on the land; nor do they make any allusion to the offset for board, or any other such demand. The answer of Leonidas E. Wade consists of bare denial of the literal allegations of the bill, with an admission of a few facts therein stated, and, though not excepted to, is not, in the light of the facts disclosed, entitled to much consideration on the essential points upon which the case must be determined. Were it not for the fact that Leonidas E. Wade appears to be now acting for his minor children, and their guardian ad litem has by answer asked the care and protection of the court in their behalf, we would hold that neither the defense of a waiver of the vendor's lien, nor that of an offset for board, was open for consideration under the pleadings in this case. But infants are entitled to special protection in a court of chancery, and we therefore examine the grounds upon which the decree can rest, without reference to the question of pleading. We must proceed, however, upon the theory that the waiver of the lien which arises in equity in favor of a vendor of real estate for unpaid purchase money is defensive matter, and the burden of proving it rests upon the defendant, unless it otherwise appears (Seymour v. McKinstry, 106 N. Y. 230, 12 N. E. 348, 14 N. E. 94; 2 Warv. Vend. p. 712, § 20); and especially should this be the rule under the state of pleadings in this case. Some facts in the case are not disputed. They are that complainant sold to defendant Leonidas E. Wade the half lot of land described in the bill for $2,000, and that after he discharged a mortgage incumbrance, certain other charges, and made a cash payment of $50, there remained about the sum of $890, and that this sum represented the consideration of two notes,-one for $250, and the other for $640.75,-which is sought to be charged on the land as unpaid purchase money. The notes are dated September 1, 1890, and are signed by F. Tuly Wade and Leonidas E. Wade. It also appears that complainant, Rosanna S. Lucas, conveyed the half lot of land in

question, on the 7th day of August, 1890, to F. Tuly Wade, and that she and her husband, Leonidas E. Wade, conveyed in July, 1894, said lot and all other real estate he owned to a third party, to be reconveyed by him to Leonidas E. Wade as trustee for his minor children, Leonidas E. and Mary I., and that said third party did so convey the property, all of which deeds have been recorded upon the public records of Duval county. The two last-mentioned deeds recite a consideration of $10, but the proof clearly shows, we think, that they were voluntary, without valuable consideration, and intended simply to place the title in Leonidas E. Wade as trustee for the minor children. They cannot, therefore, be regarded, under said conveyances, as bona fide purchasers for value; and there is no obstacle in the way of enforcing complainant's demand for the purchase money against the lot in the hands of their trustee, provided she has not otherwise lost her lien.

Leonidas E. Wade testified that he bought the N. 1⁄2 of lot 3, block 101, about the 20th or 21st of May, 1890, at which time complainant executed to him a deed for the lot, and that he and his wife then executed to complainant a mortgage to secure the balance of the money of $890.75, to be paid for the benefit of her niece and nephew, and that the mortgage remained in complainant's possession until the 1st day of September, 1890. He says that on the 7th day of August, 1890, he got complainant to execute a deed for the property to his wife, and he then destroyed the deed to himself. This deed and the mortgage referred to never appeared of record. Complainant denies that any deed was ever executed prior to August 7, 1890, but she admits that a mortgage was drawn up prior to August 7, 1890. As to the execution of both the deed and mortgage, Wade is corroborated by other witnesses; and we must conclude, under the decree rendered, that such instruments were executed. Whether or not they were accepted must depend upon the testimony. Ellis v. Clark, 39 Fla. 714, 23 South. 410. Complainant testifies that she was not satisfied with the mortgage, urging as an objection that Mrs. Wade had not signed it, and asked that another be executed, and that Wade finally drew up the notes and tendered them to her as purchase-money notes, saying that she was the vendor, and had a lien on the land to secure them. She says that Mr. Wade got a book, and read out of it to show her that she had a vendor's lien on the land for the notes; and in this statement she is corroborated by J. W. Lucas. She states that when the notes were accepted Wade destroyed the mortgage. Mr. Wade says that complainant seemed to become dissatisfied with the mortgage, saying that Mrs. Wade's name should have appeared first therein, and that the mortgage was not proper, on account of his name appearing first, and that he should

give her promissory notes and take up the mortgage, which he did; that the mortgage then remained in his possession until April, 1892, when it was taken from his possession, together with other papers relative to another matter. He further states that he informed complainant that by taking the mortgage, and then in lieu thereof the notes, she would not acquire or have a vendor's lien on the land. Still she accepted the notes. While the testimony as to the execution of both the deed and mortgage is sufficient to sustain a finding that they did exist, yet, on the question as to nonacceptance of the mortgage, complainant is corroborated by J. W. Lucas; and Mr. Wade is alone, with a strong circumstance against the accuracy of his testimony on a material point. On the 7th day of August, 1890, Wade and wife, with complainant uniting, executed a mortgage to Geo. P. Canova to secure a loan of money procured through W. P. Ward. Complainant testified that, when the notes were given to her, L. E. Wade delivered to her a statement showing what he had paid out as a charge on the lot, and the balance due her for purchase money. This statement was put in evidence, and admitted by Wade to be in his bandwriting and to have been delivered to complainant; but he says it was delivered shortly after the mortgage was executed to complainant, and previous to the making of the notes, which was on the 1st of September, 1890. The statement contains an item of $40 for taxes, $50 for Walter, $25 for Ward, $24 for abstract, $1.25 for satisfaction, and $970 for Reed mortgage. The testimony shows that Ward was to be paid in connection with the loan to Canova, and that the abstract of title was also to be paid out of the purchase money of the lot. Mr. Wade says this statement was made and delivered shortly after May 20 or 21, 1890, and before the notes were executed. In this we think he is mistaken. How could Mr. Wade well anticipate on or about the 20th or 21st of May, 1890, what would be the cost of an abstract, and Ward's charges connected with the loan to Canova, on the following 7th day of August? Furthermore, it appears from the testimony of Ward that the Reed mortgage was in existence when the Canova loan was being arranged. This statement tends strongly to corroborate complainant in her testimony that it was given her about the time the notes were executed. If complainant did not in fact accept the mortgage as a completed transaction, but objected to it, and it was finally arranged between the parties that notes should be given to represent the purchase money, then she should have a lien on the land to secure them. This would result though it be held that the title passed to Leonidas E. Wade by the first deed made to him as he states in his testimony. It fully appears throughout the entire case that he was the purchaser of the land, and complainant would have a lien for unpaid

purchase money, whether the deed was made to him, at his instance to a third person for him. 2 Warv. Vend. p. 704, § 11. That there was objection to the mortgage on the part of complainant is clearly shown, and it is quite singular that she should have been willing to voluntarily surrender a mortgage on the lot and accept unsecured notes with full information that she thereby lost all security for the balance of what was admittedly due. Complainant further states that she trusted Mr. Wade to fix up the matter for her, which he agreed to do, and he does not deny this. She was a grand aunt of Mrs. Wade, of some 60 years of age, and lived in their family. We do not overlook the fact that it appears from the testimony that a very bitter feeling existed on the part of complainant toward Mr. Wade, and that she used very extreme language in reference to him, but this state of feeling is not shown to have existed until after she had deeded the property and obtained the notes. There are other circumstances in the case that have influenced us, and, considering that the burden was upon respondent to show a waiver of the vendor's lien, we are convinced that the just and proper conclusion to reach is that complainant had not accepted the mortgage as security for her unpaid purchase money when the notes were given to her, and that she should have a vendor's lien on the lot for their security. This result accomplishes substantial justice, and we are fully convinced, from a careful reading of all the testimony, that such decision should have been rendered in the case. Where the finding of the chancellor is based upon testimony taken without an opportunity to see and hear the witnesses, his conclusion, while entitled to due weight, is not so conclusive as the verdict of a jury, or where he has an opportunity to hear the witnesses. The rule in such cases is that the conclusion of the chancellor will not be disturbed unless it clearly appears to be erroneous. Waterman v. Higgins, 28 Fla. 660, 10 South. 97.

The court excluded the evidence in reference to the set-off for board submitted by respondents, and in this result we concur. This testimony did not show payment on the notes. Mr. Wade says: "I notified Miss Lucas she must leave my house, and if she attempted and did remain I would charge her $20 a month board, and would hold the same against the notes she held against myself." He does not say that she ever agreed to this, and there is no testimony showing that she did. Whatever claim Leonidas E. Wade may have against complainant for board, it is in his own right, and not as trustee for the minor children. He is sued

in his own right, but the principal object of the bill is to subject the lot of land held by him as trustee to the payment of the notes: and an offset in his individual favor would be one in a different right, so far as the minors are concerned. As to himself,

he has not set up such a defense in his answer, and cannot rely upon it.

The decree is reversed, with directions to the chancellor to enter a decree in favor of complainant for the amount that may be found due on the notes for purchase money, and that in default of payment the N. of lot 3, block 101, according to the map of I. D. Hart of the city of Jacksonville, be sold to pay the same.

FRIEDMAN et al. v. REHM et al. (Supreme Court of Florida. Nov. 26, 1901.) DECREE-SETTING ASIDE-GROUNDS-DECREE PRO CONFESSO-APPEAL-REVIEW.

1. A final decree rendered in pursuance of a previous decree pro confesso may be set aside after the lapse of the period of 20 days from its entry, whereby it has become absolute under section 1446 of the Revised Statutes; but an application to set aside such a final decree after the expiration of 20 days from its entry should never be entertained from a mere desire to let in a defense on the merits, but only where strong and unavoidable circumstances exist excusing failure to answer at the proper time.

2. To authorize the granting of an application to set aside a final decree, which has become absolute under section 1446 of the Revised Statutes, for the purpose of permitting a defense to be interposed, it must be shown that there was deceit, surprise, or irregularity in obtaining the decree, that the defendant acted bona fide and with reasonable diligence, that he has a meritorious defense, and that strong and unavoidable circumstances exist excusing

the failure to answer at the proper time.

3. Affidavits sworn to by defendants and filed in resistance of a preliminary application for the appointment of a receiver, and neither purporting to be nor intended as formal answers to a bill of complaint, will not be regarded as answers so as to preclude the entry of a decree pro confesso if answers are not seasonably filed.

4. Neither mutual mistake of associate counsel as to the one charged with the duty of preparing and filing answers, nor the erroneous supposition that affidavits filed in resistance of an application for the appointment of a receiver would preclude the entry of a decree pro confesso, nor the fact that counsel for defendants supposed no action would be taken until the court passed upon such application for appointment of a receiver, constitute circumstances authorizing the setting aside of a final decree absolute under the statute.

5. A decree setting aside a final decree, which has become absolute under the statute, for the purpose of permitting a defense to be interposed, will be reversed on appeal where it is not shown that such circumstances existed as to authorize the action of the court in setting aside the decree, and the action of the court in that regard is assigned as error. (Syllabus by the Court.)

Appeal from circuit court, St. Johns coun ty; Rhydon M. Call, Judge.

Bill by Joseph L. Friedman and John W. Keiler, partners as Friedman, Keiler & Co.. against Herman Rehm and R. W. Simms. Decree for defendants, and complainants appeal. Reversed.

On June 4, 1895, appellants Joseph L. Friedman and John W. Keiler, partners as Friedman, Keiler & Co., filed their bill of

complaint in the circuit court of St. Johns county against appellees, Herman Rehm and Robert W. Simms, alleging that appellants recovered a judgment in said court on May 13, 1895, against Rehm for $212 damages and $4 costs, and on the same day another judgment against Rehm and one Sullius, a former copartner of Rehm, for $135.35 damages and $3 costs. The bill alleged that the judgments remained unpaid; that executions were issued thereon on May 15, 1895, upon which the sheriff of said county made return on May 24, 1895, that there was no property, real or personal, of either of said parties upon which to make a levy.

It was alleged in the bill that on and prior to November 21, 1894, Rehm was engaged in the business of selling liquors and the proprietor of a saloon in St. Augustine; that he was then indebted to the Joseph Schlitz Brewery Company, or to its agent at Jacksonville, in the sum of $1,200, payable in installments of $100 each month on and after January 15, 1895; that he was then indebted to complainants in the sum of $964.38, represented by five drafts drawn by them, and accepted by him, due, respectively, February 10, March 10, April 10, May 10, and June 10, 1895; and the bill alleged on information and belief that on or about February 27, 1895, Rehm was also indebted to the Anheuser-Busch Brewing Company in a large sum of money, the amount of which was unknown to complainants.

The bill further alleged that on or about February 27, 1895, Rehm, with intent to defraud complainants, made a colorable and feigned sale and transfer of all his property subject to execution, and executed and delivered to Simms a bill of sale of the "liquor, bar, restaurant, and hotel business, including state and county license, of the said Herman Rehm, and the 'good will' of the said business"; and that on the same day the said defendant caused the pretended bill of sale to be recorded in the office of the clerk of the circuit court of St. Johns county. A copy of the bill of sale was attached to the bill as an exhibit thereto, and made a part thereof. It purported to be made for an expressed consideration of $1,854, and undertook to convey, in addition, certain fixtures, stock, chattels, and personal property particularly described in a schedule thereto annexed, consisting of certain furniture and property usual to a saloon, and some liquors and wines. The bill then alleged that the property described in the bill of sale was all the property of Rehm subject to execution in the state of Florida; that the sale was made without consideration, for the purpose of placing the property beyond the reach of Rehm's creditors; that there was no transfer of possession, and that Rehm continued in control of the property up to the time of filing the bill, claiming to be the agent and employé of Simms.

The bill contained various other allegations

in regard to the alleged fraudulent character of the sale, prayed that Rehm might be decreed to pay complainants their judgment debts, with interest and costs, and that the property described in the bill of sale might be declared subject to the executions issued thereon. There was a further prayer that Simms might be enjoined from selling, disposing of, or in any way incumbering the property, and for the appointment of a receiver to take possession thereof.

The defendants appeared, and each in July, 1895, filed an affidavit in resistance of the application for appointment of a receiver, but neither filed an answer to the bill by the rule day in August, 1895, whereupon com plainants' solicitor filed a præcipe for a decree pro confesso against them.

On August 17, 1895, complainants brought the cause on for final hearing, and the court rendered a decree on that day reciting that a decree pro confesso had been regularly entered against the defendants, and decreeing that complainants had a lien upon the property included in the bill of sale "to the amount of the two judgments described in the bill of complaint," with interest, that the said property was subject to executions thereunder, and that the sale was made for the purpose of hindering and delaying creditors and was fraudulent and void.

On September 12, 1895, defendants filed a motion to set aside the decree pro confesso entered on August 5th, and the final decree, on the grounds stated in the opinion. Affi davit was made to the truth of the grounds of both motions, so far as they averred matters of fact, by John E. Hartridge, counsel for defendant Simms.

On October 17, 1895, the court made an order reciting that: "It appearing to the court that this application to set aside the decree pro confesso and final decree is made within the time limited by the rule, and that the grounds for said motion are duly verified by oath; and it further appearing that the defendant R. W. Simms tenders with his motion a sworn answer setting up facts which, if true, constitute a defense: It is therefore, upon consideration of said motion, ordered, adjudged, and decreed that said decree pro confesso and the final decree entered thereon be vacated, and set aside, and held for naught, and that the answer of said R. W. Simms be herewith filed."

Answers were afterwards filed by both defendants, to which complainants filed a replication. Testimony was taken, and on final hearing the court dismissed the bill at complainants' costs.

Appellants assign errors as follows: First, in receiving the motion to vacate the final decree after 20 days from its entry in the clerk's office; second, in holding the application to vacate said decree was made within the time limited by the rules of court; third, in vacating the final decree; and, fourth, in dismissing the bill.

W. W. Dewhurst, for appellants. John E. Hartridge, for appellees.

GLEN, C. (aiter stating the facts). Counsel for appellants, in his brief, concedes that under the decision in Stribling v. Hart, 20 Fla. 235, the chancellor has power, upon a proper showing, to set aside a final decree consequent upon a decree pro confesso after 20 days from the entry of the final decree, for the purpose of permitting a defense to be interposed; and asserts that the only question for review is whether the circumstances presented by the record in this case justified the exercise of that power. It appears that the bill was filed in the court below on June 4, 1895, and that appearance was filed on July 1, 1895. It also appears that the defendants filed affidavits in July, 1895, for the purpose of resisting an application on the part of complainants for the appointment of a receiver. The final decree recites that a decree pro confesso had theretofore been regularly entered. On September 12, 1895, the motion was made to set aside the decree pro confesso and final decree. That motion was made and filed more than 20 days after the rendition and filing of the final decree, and hence after the final decree had become absolute under section 1446 of the Revised Statutes. That section is substantially the same as rule 45 of the rules of practice in equity, construed by the court in Stribling v. Hart, supra, and in the opinion of the court should receive the same construction as that placed upon the rule, viz. that it does not preclude the court from setting aside a final decree upon a decree pro confesso, after the lapse of 20 days, for the purpose of permitting a defense upon the merits, under the circumstances stated in that case. The exercise of this power, however, should be confined strictly to the limits announced in Stribling v. Hart. As is said in that case: "Decrees are not lightly to be disturbed or vacated after enrollment, though entered upon default of the defendants, and it is only where there are strong and special circumstances shown, and the conduct of the party applying is entirely free from well-grounded imputation of laches or mala fides, that his application will be entertained, and the discretion of the court exercised in his favor; and the discretion to be exercised upon such application must be regulated by law and precedent, and not a mere desire to let in a defense upon the merits.

The

facts produced must show deceit, surprise, or irregularity in obtaining the decree, and that the defendant has acted bona fide, and with reasonable diligence." A final decree of this character, after it has become absolute under the statute, should never be set aside merely because the applicant has a meritorious defense. Without strong and unavoidable circumstances excusing the failure to answer, the decree should not be disturbed. The court has a very limited dis

cretion in passing upon such applications, and "the facts established must show deceit, surprise, or irregularity in obtaining the decree, that the defendant has acted bona fide and with reasonable diligence, and has a meritorious defense," before such a decree is set aside. Applying these rules to the present case, the action of the court below in setting aside the decree rendered on August 17, 1895, was clearly erroneous. The grounds of the motion for setting aside the decree pro confesso were: (1) That the case was not ripe for decree, because affidavits had been filed by both defendants on July 15, 1895; (2) that the affidavits of defendants filed in resistance of the application for receiver precluded the entry of a decree pro confesso; (3) that counsel supposed no action would be taken until the court passed upon the application for receiver; and (4) that there was a mutual misunderstanding be tween defendants' solicitors by which each expected the other to file the answers of defendants. The motion also asserted as grounds for setting aside the final decree: (1) That the case had never been sent to a master to take proofs; (2) that it had never been set down for hearing on bill and answer; and (3) that The affidavits afforded a complete and adequa te defense until overcome by testimony. It will be observed that all the grounds of both motions assert errors of law in the entry of the respective de crees, except the third and fourth grounds of the motion to set aside the decree pro confesso, which assert, respectively, that counsel supposed no action would be taken until determination of the application for receiver, and that there was a mutual misunderstanding between defendants' solicitors as to the filing of the answers. Certainly neither of these grounds authorized the setting a ide of the decree. Stribling v. Hart, sup a; Rust v. Lynch, 54 Md. 636. The other tw grounds of the motion to set aside the decree pro confesso, and the third ground of the motion to set aside the final decree, were based upon the alleged presence in the record of affidavits on the part of the defendants Rehm and Simms, filed in resisting the application for a receiver, which, it was asserted, precluded the entry of a decree pro confesso or final decree; but such affidavits, filed by the defendants for the purpose stated, could not serve the purpose f formal answers to the bill so as to prelude the entry of a decree pro confesso. Tat they were not intended to do so is shown by the motion itself, in its allegation, duly verified, that answers were not filed by reason of the mutual misunderstanding of defendant solicitors. The first and second grounds othe motion to set aside the final decree are thout merit, and need not be further cond

ered.

The allegations of fact in the bill, whic were admitted by the decree pro confesso were sufficient to warrant the final decree