The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1888-03-08
HRAD-NOTEs TO DEC IsTONs OF TMB
SUPREME COURT OF FLORIDA.


MAXWELL, G. j.:
l. 1t is not enough 10 allege in q case of nu-
sance that the injury will be irreparable 10 COM
plainant, but facts must be shown 10 enable the
court to judge whether the injury will be Of the
character stated, and such as will clearly author
ize Injunction before he will be entitled to the
interposition of the court
g. If the thing sought TO be enjoined is in it.
self or prins0 fdcse a nuisance, and il so appears
from the facts set forth 10 the BILL the court will
give its aid to stay irreparable mischief; but
where it is not unavOdably and in itself nox-
iou., but only something that may, according
to circumstances, prove so, the court will refuse
to interfere until hearing on the proofs, or until
the matter has heen tried at law.
8. Courts interfere with great reluctance
with the free use and enjoyment of prop.
erty by an owner or occupant and Will
only Interfere where it is clearly made out
that the use and enjoyment is injurious TO the
rights of others.
4 If the injury complained Of be doubtful,
eventual or contingent, equity will not enjoin;
and mere diminution in the value of property,
without irreparablc mischief will not furnish
foundation for equitable relief.
8. livery stable adjoining hstel or dwell
ing house in city Is not necessarily or prn0 ia
cse nuisance
The decree is affirmed and the case remanded.
Taylor s. Carter, for Appellants; Ashby, Fin
ley & Thrasher. for Appellees.
J. n. McLane and Wife, Appellants. Piaggo
Brothers and Richard L. Campbell, Appelless
Leon county.
[Broome, Judge 9TH Judicial Circuit, sitting
in place of Chief Justice Maxwell, disqualified
RANEY, j.:
/. A subpoena in chancery may be served on
wife by delivering copy OF the same 10 her hus-
band, with whom she is codefendaAt, in the
manner provided by statute for service by deliv
cry to a person above fifteen years OF age resid-
ing in the family.
2. Where mortgage secures promissorv notes
falling due at different dates and bill is filed to
foreclose the mortgage after the maturity Of one
but before that OF the other. and the latter note
natures before the decree of foreclosure and sale
is rendered, the decree may cover the latter as
we'll as the former note if proper foundation
therefor has been laid in the bill
8. That a wife who relinquished her dover by
joining with her husband in the execution of a
mortgage, did 80 " without any pecunary con-
sderation thereunto moving her., is not good
plea to bill filed 10 forecose the mortgage
pccuniary consideration to the wife is no, an es-
sental Of . relnqushmen: of dover made in the
manner prescribed by the statute, 10 a mortgage
valid as against her husband
4. Where settlement of accounts has been
made by parties competent to contract, and prom
issory notes executed by one OF them to the other
for an amount covering both The balance found
"
ance, and = mortgage has been made to secure
the notes, and no fraud or unfair dealing on the
part OF the mortgage IS shown, such settlement
is sufficient consideration for the notes and
mortgage, and the settlement will not be dis
turbed.
s. The fact that the mor,gagor was influenced
by friendly advice to make such settlement is not,
in the absence Of fraud upon the part Of the per-
son giving the advice, defence to the foreclo-
sure OF the mortgage in favor of such person.
6. When a final decree has been entered and
petition for a reheaTng is filed within the time
prescribed by the statute and rule of court gov
erning in the Circuit Court it is not improper
upon hearing upon such petition to modify the
decree as to an error admitted by the complain
ant, and found by the Chancellor TO exist.
z. An appellate court will not allow claims of
credit denied by the lower cnur;, unless the tes-
timopy shows clearly that there was error in de-
nying them
g. The vendee of purchaser at a foreclosure
sale, should where his right 10 possession is clear,
be allowed writ of assistance against a mort
gagor 10 possession of the mortgaged property,
and who was party 10 The foreclosure suit
The practice of granting writ of assist |
ance without notice to the party in possession, |
though sustained by authority, is disapproved. |
Where, however, as in The case at bar, the par |
ties in possession do not claim that they |
have been deprived OF property covered by the |
mortgage and decree without notice of such ap- |
phcation, but say they are and have always been |
ready TO give possession of the property so de- |
scribed. and claim that the description of the |
property for which the writ was given is not the |
description contained in the decree, and that
they have been deprived through the ins,ru-
mentality OF the writ OF property not included |
10 the decree, the fact being however, that the
description in the writ is though no, so detailed.
clearly the same 10 substance as tina, in the de-
cree, the action of the Chancellor in granting the
writ without notice will not be reversed
III. As against q mortgagor who has furnished |
description OF land as that upon which certain |
improvements intended 10 be mortgaged by him
were located, his statement that the improve
ments are not on the land so described. il not suf
cient evidence Of their not being on such land to
authorize court TO set aside writ of assistance
which has been executed, and restore such prop.
ertv to his possession.
IL. A plat OF a survey made by q County Sur
veyor or his deputy, is not of itself evidence that
in making the survey he began at the pine tree
mentioned In mortgage as the initial point of
the description OF land mortgaged and stated 10
such mortgage to be about one hundred yards
southwest Of a certain mill nor is such plat |
evidence that certain improvements intended to |
be mortgaged aad described in the mortgage
as being on the laad actually mortgaged. are not |
on such land
II. A purchaser at q foreclosure sale should, |
upon demanding possession OF the property pur- |
chased, exhibit 10 the party in possession the
Masters deed, and the vendee of the purchaser
should exhibit both such deed and that from the
purchaser 10 him, If he intends to apply for .
writ of assistance against such party
Affirmed.