A writ of error was taken by Michael E. White to a judgment entered against him in the Circuit Court for Broward County in favor of Charles S. Candall and Ada M. Crandall, a married woman suing by her husband and next friend Charles S. Crandall, in the sum of twenty-two thousand three hundred and twenty-five dollars and eighty-four cents on June 13, 1929.

The action was brought by the Crandalls upon two promissory notes signed by Michael E. White and Matilda White, each note dated February 3, 1926, and each payable to the order of Charles S. Crandall and Ada M. Crandall in the sum of eight thousand three hundred and thirty-three dollars with interest at the rate of six per cent per annum from date payable annually, one payable on or before one year after date and the other payable on or before two years after date.

The declaration was filed March 4, 1929, two years after the due date of the first note and one year after the due date of the second. The declaration alleged that no part of the principal or interest was paid upon either note but a credit of five hundred and nineteen dollars and twenty-three cents upon the first note on attorneys' fees was allowed in the foreclosure of a certain real estate mortgage by the Crandalls "against the defendant securing the payment of the aforesaid promissory note". A copy of each note was attached to the declaration as the cause of action upon each count.

The declaration alleged that the defendant was indebted to the plaintiffs in the sum of principal of each note with interest and reasonable attorneys' fees.

A plea called a plea to the jurisdiction was interposed by the defendant White averring that he did not reside in Broward County but that he resided in Palm Beach County and that the cause of action did not accrue in *Page 87 Broward County. The declaration alleged that the notes were payable at Fort Lauderdale Bank Trust Company, Fort Lauderdale, Florida. A demurrer to that plea was interposed by the plaintiff.

On March 28, 1929, the court sustained the demurrer by an order dated March 28, 1928. The latter date appears to be a clerical error as the transcript of the record recites that the order was entered on March 28, 1929, and was filed on that date, Ten days were allowed the defendant in which to plead. By stipulation between counsel the time allowed defendant in which to plead was extended to April 15, 1929.

Eight pleas to the declaration were interposed by defendant. Demurrers to these pleas were sustained on May 4, 1929, and lief was granted to the defendant to apply to the court within fifteen days from the date of the order for leave to file amended or further pleas on condition that notice of application be given to plaintiff and a copy of such purported or amended pleas be furnished to them. Assignments of error numbered from one to nine inclusive based upon the orders of the court sustaining the demurrer to the so-called plea to the jurisdiction and the demurrers to the eight original pleas were expressly waived by plaintiff in error in the brief filed by counsel in his behalf. There were twenty-one assignments of error. Of the twelve remaining the nineteenth, twentieth and twenty-first based upon the alleged error of the court in entering final judgment for the plaintiffs were not argued and therefore will be considered abandoned. See Southern Express Co. v. Van Meter, 17 Fla. 783; Bloodworth v. Lippincott,78 Fla. 261, 82 South. Rep. 827; Porter v. Parslow, 39 Fla. 50,21 South. Rep. 574; Seaboard Air Line Ry. Co. v. Nims, 61 Fla. 420,54 South. Rep. 779; Jordan v. Sayre, 24 Fla. 1,3 South. Rep. 329; McCook v. Caruthers, 87 Fla. 238, *Page 88 99 South. Rep. 559; Crawford v. State, 86 Fla. 94,97 South. Rep. 288.

The above statement is made, seemingly unnecessary though it may be, because in the brief filed by attorneys for defendant it is stated that this Court in this case is confronted "with one of the most glaring cases of oppression that will ever come before the court" and further that "If there were ever a case in which a court was used, or attempted to be used by litigants in an attempt to extort money to which they were not entitled, it is in this case".

The language quoted is very severe and its propriety doubtful in any case where errors of the trial court are apparent and the successful party stands to obtain an illegal advantage. So the above statement is given of the progress of the case that it may be seen that nothing in the nature of oppression, or an attempt to use the court "to extort money to which plaintiffs were not entitled" appears from the record's disclosures to the point of the interposition of the amended pleas allowed by the order of May 4, 1929.

It remains to be seen whether the record discloses any substantial error in the further progress of the case as that question may be determined by the orderly rules of pleading and procedure or the substantive law of the case.

In the third opinion filed in this case which was on May 11, 1932, it was said in substance after a review of the proceedings that assuming no error was made in sustaining the demurrer to the amended pleas and declining to allow the defendant to file further pleas, nothing remained for the court to do but enter a judgment on the demurrer and calculate the amount of the principal and interest due upon the written promise to pay, so in that matter no harm whatsoever was done to *Page 89 the defendant and there was no error whatsoever in the court's action.

We will therefore consider the remaining assignments of error numbered from ten to eighteen inclusive all resting upon the court's order in sustaining demurrers to the amended pleas numbered from one to nine inclusive. Those pleas were filed on May 29, 1929, pursuant to an order made by the court on that day allowing the defendant to interpose the pleas. They were set out in thirty pages of typewritten matter and four pages containing a copy of a deed of conveyance from Mr. and Mrs. Crandall to Michael E. White conveying the fee simple title to certain lots of land in Broward County.

The plaintiffs demurred to the amended pleas, nine in number. The demurrer itself covered thirty-two pages of typewritten matter. After due notice of hearing the court by order dated June 12, 1929, sustained the demurrer to each and every of the amended pleas without leave to file further or amended pleas. No complaint of that phase of the order denying leave to file further or amended pleas is made, and no injustice is apparent in that matter from the record.

So the only question to be determined is whether the pleas constituted a defense to the declaration and complied with the rules of pleading in the manner presented.

When this case came first to be heard in this court an order was entered reversing the judgment. The reason given in the opinion was that there was nothing to indicate that the defendant White or his counsel had knowledge or notice of the order sustaining the demurrer to the amended pleas or the motion for final judgment on demurrer and as the order was without leave to amend the court was in error in entering judgment without notice to defendant on the same day the order sustaining the demurrer was made. *Page 90

The order of this court was made November 13, 1931. A petition for a rehearing was denied on January 7, 1932, the opinion of the court following the same line of reasoning as given in the first opinion.

On May 11, 1932, this court again reviewing the case upon a second petition for a rehearing ordered that the mandate should be stayed and a rehearing granted. The effect of that order was not to reverse the former order of reversal but to hold it in abeyance or to suspend it pending a further consideration of the cause although the opinion of the court upon the first hearing and the opinion denying the first petition for a rehearing were by the last opinion rescinded as inapplicable to the situation presented by the record in that it was not deducible from the record that the entry of judgment was irregular or not in conformity to usual and correct procedure or that the plaintiff in error suffered any injury or was in anywise aggrieved by the entry of the judgment in the circumstances in so far as the procedure was involved. The court being of the opinion that the question for consideration was the sufficiency of the amended pleas and whether there was error in not allowing the defendant an opportunity to present other pleas when the demurrer was sustained if there were any assignments of error based upon that phase of the order. As has been pointed out no assignment of error has been made upon that phase of the order so that question will not be considered as the record discloses no error of any degree of discernibility in that regard harmful to the defendant.

This defendant, by the first amended plea, undertook to set up the defense of lack of consideration for the notes. The facts averred were that the defendant executed the notes as and for a portion of the purchase price of two or more lots or tracts of land situated in Ft. Lauderdale, Florida, which the defendant purchased *Page 91 from the plaintiffs at the price of $27,000 and made a cash payment of ten thousand dollars. It is averred however that the transaction was void because of false representations made to the defendant by plaintiffs or their agents with power to bind the plaintiffs in making such representation.

The false representations were averred to consist of opinions as to market value of the lots sold; that a great number of apartment houses, hotels, office buildings and store buildings were being erected or would be erected in the immediate future in the vicinity of the lots sold and that within ninety days the plaintiffs would resell the property for the defendant at a profit which the plaintiffs failed to do. The defendant relied upon such representations, purchased the property, made the cash payment, executed the notes and a mortgage "embracing the said lands" to secure the indebtedness evidenced by the notes. The plea avers that the plaintiffs foreclosed the mortgage and became the purchasers of the lands for the sum of six hundred dollars. The plea also avers that for two years the defendant was vested with the title to the land and was in position to reconvey it to the plaintiffs in settlement of the indebtedness and prevailed upon the plaintiffs to accept a reconveyance of such title to them in settlement thereof and the defendant would be in a position to do so but for the fact of such foreclosure proceeding and sale.

The plea is clearly bad, not only because it fails to aver any fact to establish fraud in the sale of the land but clearly shows that whatever defense the defendant offered to the action on the notes was known to him and available to him in the foreclosure proceedings and whether he availed himself of such defense or not the decree in the foreclosure suit is binding upon him in so far as it established the legal existence of the debt constituting *Page 92 the basis of the mortgage lien which was enforced by decree of the court. As to the defendant, that decree is res adjudicata. See Huddleston v. Graham, 73 Fla. 350, 74 South. Rep. 414.

But the plea admits the existence of a consideration for the notes namely the purchase of the property by him and the conveyance of it to him, the title to which remained in him until it was divested by sale under foreclosure proceedings. The averments as to market price, the prospect of other buildings being erected in the vicinity and others actually being built, and the promise to resell the lots purchased at a profit within a short time do not constitute, under any authority which this court has ever followed on such question, such fraud as to render the transaction void or a basis even for the rescission of the contract. The case presented by the plea is not within the rule announced in Nixon v. Temple Terrace Estates, 97 Fla. 392, 121 South. Rep. 475, in that in the plea here presented there is no averment that the plaintiff intended to erect such buildings and that the money was on hand appropriated and set apart for that purpose solely. See Smith v. Homeseekers Realty Co., 97 Fla. 236, 122 South. Rep. 708; Sun City Holding Co. v. Schoenfeld, 97 Fla. 777,122 South. Rep. 252; Glass v. Craig, 83 Fla. 408, 91 South. Rep. 332; Stokes v. Victory Land Co., 99 Fla. 795, 128 South. Rep. 408; Criner v. State, 92 Fla. 483, 109 South. Rep. 417.

The plea is also defective in not averring that the defendant was so situated that inspection of the premises by him was impossible or inconvenient or that he was without equal means of information or that he was unacquainted with the location. See Riverside Inv. Co. v. Gibson, 67 Fla. 130,64 South. Rep. 439. Nor was it averred that the relations of the parties were such that the defendant had a right growing out of such relations *Page 93 to rely upon the representations. See Hart v. Marbury, 82 Fla. 317,90 South. Rep. 173.

Nor was there an averment that at the time of the alleged representations by plaintiffs or their agents they knew the same to be false and were made for the purpose of deceiving defendant. See Hancoy Holding Co. v. Lambright, 101 Fla. 128,133 South. Rep. 631; Pepple v. Rogers, 104 Fla. 462,140 Sou. Rep. 205.

The plea is also subject to criticism for indefiniteness because the averment that the alleged representations were made by the plaintiffs, or through their duly constituted agent with power to bind the plaintiffs, is a conclusion of law as to the agent's authority. If the agent made the representations and they were false and concerning a material fact the averment should be clear that the plaintiff authorized the agent to make such false statement or that he was within the scope of his employment as agent to make such representations. The plea avers that in making the sale the agent was within the scope of his authority but there is appended to that averment the conclusion of law that he was empowered by that authority to make the false representations.

An examination of the cases cited by the counsel for plaintiff in error in support of the plea we think shows them to be not analogous to the case made by the plea under consideration. It would require the lengthening of this opinion to an unreasonable degree to discuss the cases in detail. The principles of law for which counsel contend are not disputed but they do not apply to the defense made by the plea under consideration. Take the first case cited, McMillan v. Am. Suburban Corp., 136 Tenn. 53, 188 S.W. Rep. 615, L.R.A. 1917 B 401, relating to a failure of consideration as a defense in an action upon promissory notes. The plea in the instant case undertook to set up the defense of no consideration *Page 94 for the notes in that they were given for the purchase of land in a transaction in which the plaintiff's fraud annulled the obligation. In the McMillan case it could not be claimed, said the court, that the contract of sale was induced by fraud or mistake or that the vendor company is insolvent but it was a case involving the right of the vendor to rescind an executory contract of sale because of the vendor's breach of a covenant or guaranty to make improvements.

In counsel's brief the plea is construed as one setting up a failure of consideration yet the plea avers that there was no consideration and then proceeds to aver a state of facts as stated above which it is claimed established a fraud which annulled the transaction which otherwise would have been a consideration.

One of the essential elements of pleading is certainty. As a defendant is entitled to know the nature and cause of the accusation against him, that is to say the ground upon which it is sought to hold him liable, so the plaintiff is entitled to know with reasonable certainty the ground upon which the defendant says the plaintiff should not recover. If it is a case of no consideration the pleas should contain averments that the defendant received no benefit from the property purchased as the plea itself negatives the idea that the notes were given for a service to be performed as consideration for the note. See Ahren v. Willis, 6 Fla. 359, Jones v. Streeter,8 Fla. 83.

But assuming that the plea may be treated as a total or partial failure of consideration under Sec. 4329 C. G. L. 1927, the averments constituting the grounds of defense are not sufficient to support the plea as heretofore pointed out.

The rule requiring an averment in the plea in case of total failure of consideration that defendant received no *Page 95 benefit was recognized in Barcus v. Wood, 92 Fla. 763,110 South. Rep. 265. And a plea which sets up in bar of an action a total failure of consideration but shows only a partial failure is bad on demurrer. 4 Ency. Pl. Prac. 951.

The notes sued on in this case were under seal. While not affecting their negotiability nevertheless the seal rendered them effectual as contracts under seal. See Grand Lodge K. of P. of Florida v. State Bank of Florida, 79 Fla. 471,84 South. Rep. 528.

The averment that the defendant prevailed upon the plaintiffs to accept a reconveyance of the title is not effective as a plea of satisfaction and discharge or release. There was no error in sustaining the demurrer to the first plea.

The second amended plea undertakes to present the defense of no consideration for the notes based upon averments which in substance are that the plaintiffs with intent to cheat and swindle the defendant falsely and fraudulently represented to him that the plaintiffs were lawfully seized of an indefeasible title to the land, had good right to sell and lawful authority to sell the fee simple title free of incumbrances and adverse claims and would warrant and defend the title to the same against all persons whomsoever; that relying upon such representations defendant purchased the lands from the plaintiffs for the consideration of $27,000. "without making any investigation whatsoever to ascertain whether or not the plaintiffs were seized and possessed of such title on or about the day the notes sued upon bear date."

The averment is made that defendant paid $10,000. and executed the notes for the balance and the plaintiffs executed and delivered to the defendant a deed of conveyance to the land which deed contained the "usual common law covenants of warranty". A copy of the *Page 96 deed is attached and by appropriate words is made a part of the plea. The covenants contained in the deed are that the grantors are "lawfully seized of the premises and that they have good right and lawful authority to sell the same" and that they "fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever". It is averred that the covenant of seizin was breached upon delivery of the deed because in the deed under which plaintiffs held title there were certain restrictions relating to the character of buildings which may be erected upon the property, a right of way of five feet across the rear end of the lots was reserved and restrictions upon the sale of the property to other than a person of the Caucasian race. It is averred that the defendant has never had possession of the land and has never been able to get possession of it and to enjoy the free and unrestricted use of it.

It is averred that for two years the defendant was vested with the title to the land which the plaintiffs had and was in position to reconvey it to them and prevailed upon them to accept a reconveyance but the foreclosure proceedings were instituted by the plaintiffs in reference to which the same averments were made as were made in the first plea.

The second amended plea cannot be treated as one setting up a total lack of consideration or partial failure of consideration because as shown heretofore it lacks all the elements of such a plea. It clearly attempts to set up a breach of the covenant of seizin as a complete defense to the action. The attempt to make the oral representations, antedating the conveyance, as to a good right to convey and a warranty against adverse claimants and freedom of the property from incumbrances, coupled with averments that such representations were fraudulently made for purposes of deception is futile because it *Page 97 is not averred that the defendant was deceived thereby. Indeed he could not have been if the restrictions contained in the conveyance to plaintiffs were deemed to be sufficient to prove the falsity of such representations because such representations were merged in the covenants contained in the deed to defendant who had notice from the record of plaintiffs' deed, under which they claimed, of the existence of such restrictions. The oral representations were merged in the covenants of the deed of conveyance. The transaction became an executed contract of sale of the land. The purchase was completed and the defendant accepted the title which the public record disclosed was burdened by the restrictions and the easement.

The case Wheeler v. Sullivan, 90 Fla. 711,106 South. Rep. 876, is not in point as in that case the contract involved was an executory contract of sale. The fact that defendant did not take actual possession of the land does not in the absence of any averment that he was prevented from doing so render the deed from plaintiffs an executory contract to convey. It is not a question whether the building restrictions and the easement constitute incumbrances upon the land or that they render the title unmarketable. So much may admitted but where the defendant has completed the purchase, accepted his deed, the transaction is closed and the purchaser is confined to his action for breach of the covenant. The plea does not aver that the restrictions are still enforceable which would be a defect in the plea if the contract was executory.

The plea is bad because according to its averments the defendant is estopped from setting up the attempted defense by reason of the decree in the foreclosure suit in which the same defense was available to him and the facts constituting it were known to him. See Mattair *Page 98 v. Card, Admr., 19 Fla. 455; Hay v. Salisbury, 92 Fla. 446,109 South. Rep. 617; Huddleston v. Graham, supra.

The plea is bad because according to its averments the representations do not constitute such false or fraudulent representations because it is not averred that plaintiffs did not have full right to convey and were not seized of the fee simple title but complaint is made merely as to the restrictions which even though constituting incumbrances do not establish a want of consideration.

The plea is also subject to the criticism that the delay of the defendant in asserting his objection to the title encumbered by the alleged restrictions for a period of nearly two years, during which time he occupied the status of owner in fee and entitled to any appreciation in value of the property, would bar the defense sought to be interposed. DeHuy v. Osborne, 96 Fla. 435, 118 South. Rep. 161.

The averments of the plea negative the idea of the absence or want of a consideration for the notes. The averment that the defendant was vested with the title conveyed to him at all times after the execution of the deed and that he was in position to reconvey it to the plaintiffs shows the existence of a consideration. Greenleaf v. Cook, 2 Wheat. 13, 4 L. Ed. 172 and note; Thornton v. Wynn, 12 Wheat. 183; Mickler v. Reddick,38 Fla. 341, 21 South. Rep. 286.

There is no averment in the plea that the defendant has been evicted or that he has suffered any loss by reason of the restriction. The rule in such cases as presented by the plea is that the defendant is remitted to his action upon the covenants in the deed.

There was no error in sustaining the demurrer to the second amended plea.

The third amended plea undertakes to adopt by reference all the averments of the second plea and adds *Page 99 that the defendant is entitled to recover from the plaintiffs the $10,000. cash paid by him to the plaintiffs upon the purchase of the land because as the transaction was void according to the averments of the second plea he should recover damages in a sum equal to that paid to plaintiffs upon the purchase of the land. The plea is dependent upon the validity of the second plea. If that plea falls the third must follow it. The plea is clearly an attempt in a common law action upon a promissory note given for a part of the purchase price of land to obtain a rescission of the contract upon defective allegations of fraud and a restitution of the money paid upon the purchase price. It is neither a set-off nor recoupment nor a plea in bar nor confession and avoidance. It has no place so far as we are advised in common law pleading and counsel furnish us with no authority to support it.

There was no error in sustaining the demurrer to the third amended plea.

The fourth amended plea also attacks the notes as being without consideration. The same averments of fraud as to the representations concerning seizin or legal title, good right to convey, and warranty of title free from incumbrances that were made in the second amended plea were repeated in this plea. The plea then avers that the covenants or warranties contained in the deed were breached by the plaintiffs. The facts set up to establish such breach as are the averments that the title to the land was at the time of conveyance to the defendant by the plaintiffs and still is in the Lauderdale Realty Company, which title was subject to a mortgage held by A. J. Bendle who assigned it to Mary Brickell and she began her suit in 1913 to foreclose the mortgage, obtained a decree, the property was sold by a special master to William Pruden Smith who conveyed to Woods-Hoskins-Young *Page 100 Company in 1924, who conveyed it to the plaintiffs in 1925.

The averments that the title is still in the Lauderdale Realty Company rest upon averments collaterally attacking the decree obtained by Mrs. Brickell in the foreclosure suit against that company. The plea then proceeds with the same averments as to the restrictions contained in the deed to the plaintiffs as were contained in the second deed. The plea is bad because the attack upon the validity of the Master's deed to Smith on the ground that no subpoena was served upon the Lauderdale Realty Company, "no legal service was had upon the said company", "no service by publication as required by the laws of the State and the said court never at any time had jurisdiction of the Lauderdale Realty Company" aside from the objection that such averments are almost entirely conclusions of law and therefore not good pleading they do not negative the idea that the Lauderdale Realty Company appeared by its officer or counsel and submitted itself to the court's jurisdiction.

In other respects the plea is the same as others which have been considered. The averments in this plea do not show a total failure of title. In this plea a collateral attack is made upon a decree of the Circuit Court but no averment is made that the record affirmatively shows an absence of jurisdiction. Harrod v. Harrod, 167 Ky. 308, 180 S.W. Rep. 797; 34 C. J. 532; Black on Judgments, Sec. 271; Sammis v. Wightman, 31 Fla. 10,12 South. Rep. 526.

In the above case Mr. Chief Justice Raney speaking for the Court said: "It is also true, and reasonably so, that where the party sued undertakes to assail by plea the jurisdiction over him of the court of the sister state in which the judgment sued on was obtained, the plea must negative by certain and positive averment every *Page 101 fact upon which such jurisdiction can be legally predicated. If by any reasonable intendment the facts alleged in the plea can exist, and the court rendering the judgment sued on still have had jurisdiction, the plea is bad."

The same doctrine applies when the attack is made by a third person not a party to the judgment attacked. See also Ritchie v. McMullen, 159 U.S. 235, 40 L. Ed. 133.

The plea is also bad because it undertakes to set up a breach of seizin by attacking the title in the plaintiffs to the land because of the lack of the court's jurisdiction in the foreclosure suit by Mrs. Brickell and avers a breach of covenant against incumbrances. These are distinct defenses if validly pleaded. If they were validly pleaded the plea would fall for duplicity. The demurrer was properly sustained to the fourth amended plea.

The fifth amended plea is bad for the reason given as to the third. The seventh is also bad for the same reason and the ninth amended plea must fall for the same reason.

The sixth and eighth amended pleas contain no new averments; set up no other defense than that attempted to be presented by the pleas which have been considered. It would be useless to prolong this opinion by any further discussion of the defenses attempted to be interposed.

A careful analysis of all the pleas shows that the defendant seeks to interpose as a bar to the plaintiffs' recovery an alleged breach of a covenant against incumbrances while making no averment of injury to the defendant by reason of the existence of the building restrictions which are treated as incumbrances. Such a defense is not a bar to the plaintiffs' claim though the defendant may have his action for damages for the alleged breach of the covenant. *Page 102

The pleas attempt to set up the defense of a total failure or want of consideration while admitting the purchase of the land and the obtaining of the title thereto. They seek to treat as an executory contract that which is fully executed.

There is no merit in any of the pleas. The demurrers to them were correctly sustained. In this view of the case the first opinion of this court reversing the judgment is recalled and set aside and the judgment of the trial court is hereby affirmed.

BUFORD, C.J., AND BROWN, J., concur.

DAVIS, J., concurs in the opinion and judgment.

WHITFIELD AND TERRELL, J.J., dissent.