Judges: PER CURIAM.
Attorneys: Goodloe Warden, Jr., for Appellants;
Padgett Burton, Inman Padgett and W. Ross Burton, for Appellee.
Filed: Mar. 31, 1936
Latest Update: Mar. 02, 2020
Summary: Frances L. Dunning, by her next friend, George M. Dunning, filed a bill of complaint against Hugo C. Enstrom and Espanola Enstrom, his wife, appellants, for the foreclosure of a mortgage securing a five thousand dollar note, dated November 20, 1926, which mortgage covered certain property in the City of Miami, Florida. The defendants answered the bill of complaint by admitting the *Page 572 execution of the note and mortgage, but denied the indebtedness by averring usury. The complainant several
Summary: Frances L. Dunning, by her next friend, George M. Dunning, filed a bill of complaint against Hugo C. Enstrom and Espanola Enstrom, his wife, appellants, for the foreclosure of a mortgage securing a five thousand dollar note, dated November 20, 1926, which mortgage covered certain property in the City of Miami, Florida. The defendants answered the bill of complaint by admitting the *Page 572 execution of the note and mortgage, but denied the indebtedness by averring usury. The complainant several ..
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The question of estoppel was not raised in the court below. Nor was it pleaded. The general rule is that estoppel, to be availed of on the trial or hearing must be specially pleaded. 10 R.C.L. 842; Lakeland v. Turner, 207 Ala. 73, 91 So. 877; W.T. Raleigh Co. v. Langford, 112 Fla. 487, 150 So. 592. Nor was this question embraced in the statement of questions involved, as made by appellant or as corrected by appellee. And surely partial payments made on a usurious contract, either before or after maturity cannot estop the borrower
from setting up usury as a defense. 66 C.J. 278, 290. I think our original judgment should be adhered to.
ELLIS, P.J., concurs.
