Because of the earnest insistence of plaintiff in error that the merits of this writ of error should be decided insofar as the sufficiency of the declaration is concerned, a rehearing was granted and thereupon full and complete new arguments had on the proposition whether or not the declaration in the suit below stated a good cause of action against the defendant. Our first opinion, filed May 10, 1935, merely vacated the judgment appealed from without prejudice and remanded the cause to the Circuit Court for further appropriate proceedings in the light of this Court's opinion and judgment in a companion case brought here and decided under the style of Yates v. St. Johns Beach Development Co., opinion filed March 19, 1935 (rehearing denied April 5, 1935), 118 Fla. 788, 160 So.2d Rep. 197.

The final judgment in this case was rendered on demurrer to defendant's pleas visited back on the plaintiff's declaration.

Therefore the legal proposition established by that ruling was that the allegations of the plaintiff's declaration in the Court below were legally insufficient, even if true, to make out aprima facie cause of action at law against the defendant St. Johns Beach Development Company on the hypothesis of its alleged assumption of the mortgage debt represented by the second mortgage bonds described in the several counts of plaintiff's declaration. *Page 145

The principal allegation relied on in the first count of the declaration was that defendant, St. Johns Beach Development Company, had accepted the benefits of a certain extension agreement which carried with it an obligation to pay the mortgage debt; that because of the defendant's alleged acceptance of the benefits of such extension agreement, that said defendant St. Johns Beach Development Company, as taker of the legal title to the land involved not only took such title encumbered with plaintiff's second mortgage bonds, but with an assumption of obligation on its part to pay them in accordance with the terms of the extension agreement whose benefits plaintiff alleged had been accepted by it with a concomitant burden to pay the debt to which the extension agreement related.

In legal contemplation, the present suit at law is entirely distinct from the companion equity suit in which a different character of pecuniary liability is sought to be established and enforced with respect, no doubt, to the same debt, but altogether against different parties who are alleged to be under an individual equitable duty to indemnify complainant against it.

The law is well established to the effect that an undertaking, express or implied, by parol agreement or otherwise, by the grantee of encumbered land, at the time of his acceptance of a deed of conveyance to it, that he will assume or pay the mortgage indebtedness upon the conveyed property as part of the consideration for the conveyance, may be sued on and enforced in equity by the mortgagee, or recovery thereon may be had as well in a court of law. Herrin v. Abbe, 55 Fla. 769, 46 Sou. Rep. 183, 18 L.R.A. (N.S.) 907; Enns-Halbe Co. v. Templeton, 101 Fla. 609, 135 Sou. Rep. 135; Holland v. W.C. Belcher Land Mortgage Co. (Texas Civ. App.) 248 S.W. Rep. 803; Brasseau *Page 146 v. Lowy, 209 Ill. 405, 70 N.R. Rep. 901; Wood v. Smith, 51 Iowa 156, 50 N.W. 581; Heid v. Vreeland, 30 N.J. Eq. 591. See also Proctor v. Hearne, 100 Fla. 1180, 131 Sou. Rep. 173; Whitfield v. Webb, 100 Fla. 1619, 131 Sou. Rep. 786; Marler v. Parker,101 Fla. 780, 135 Sou. Rep. 400; Ft. Pierce Bank Trust Co. v. Smith, 108 Fla. 313, 146 Sou. Rep. 225. Compare Luria v. Bank of Coral Gables, 106 Fla. 175, 142 Sou. Rep. 901.

On the authority of the rule of the cases just cited, we hold that it was error for the Circuit Court to visit the plaintiff's demurrer to the defendant's pleas back on plaintiff's declaration insofar as the second, third and fourth counts of such declaration are concerned. The ruling, however, as to the first count was correct, because that count undertook to impute an absolute liability to the grantee for the non-performance of the obligations of the alleged extension agreement, irrespective of any real intention or agreement of the parties to that effect, and without any showing of implied liability such as would follow the transaction as a matter of law, because of the inclusion of the indebtedness in the terms of the consideration for the conveyance. See: Luria v. Bank of Coral Gables, supra (16th headnote).

The interest of plaintiff below in the cause of action sued for sufficiently appears from the allegations of the declaration to withstand a general demurrer. It was sufficient to allege and show that plaintiff was the holder of the bonds defendant is alleged to have become liable to pay under the circumstances pleaded in the several counts of the declaration herein held to be good.

The judgment of this Court heretofore entered on this writ of error should be recalled and revoked. A modified judgment in lieu thereof is thereupon entered as follows: *Page 147

"It is considered, ordered and adjudged by this Court that the judgment of the Circuit Court in this cause be and the same is hereby reversed, with directions to vacate the order visiting plaintiff's demurrer to defendant's pleas back on plaintiff's declaration and sustaining same insofar as the second, third and fourth counts of the declaration are concerned, but to allow the same to stand undisturbed as to the first count of plaintiff's declaration — one fourth of the costs of this writ of error to be taxed against the plaintiff in error, the remainder to be taxed against defendant in error.

Judgment of Supreme Court recalled and revoked on rehearing and now judgment entered reversing judgment below with directions.

WHITFIELD, C.J., and ELLIS, TERRELL, BROWN and BUFORD, J.J., concur.