MOORE, ET VIR. v. SOUTHWELL, ET UX., 116 Fla. 700 (1934)

156 So. 631

ONA M. MOORE, et vir., v. A. F. SOUTHWELL, et ux.

Supreme Court of Florida, Division B.
Opinion Filed September 28, 1934.

An appeal from the Circuit Court for Hernando County, Fred L. Stringer, Judge.

S. Whitehurst’s Sons, for Appellants.

D. M. Johnson, for Appellees.

PER CURIAM. —

It appears that Louie Coombs took from Southwell and wife notes and purchase money mortgage upon conveying lands in Florida in exchange for land in Colorado. Later Southwell obtained a judgment against Coombs in Colorado for fraud in the land exchange transaction. After the first note matured for payment, Coombs assigned the notes and mortgage to Ona M. Moore who, joined by her husband, brought foreclosure proceedings against Southwell and his wife. The latter secured a reduction in the foreclosure decree for the amount of the judgment against Coombs obtained in the State of Colorado by Southwell for fraud by Coombs in the land exchange transaction. If in taking from Coombs an assignment of the notes and mortgage on lands in Florida after the first note had matured for payment, the rights of the Moores were subject to equities of the Southwells against Coombs in the premises, the Southwells cannot have the judgment in tort against Coombs rendered in another State, used as a counter claim against the Moores in the foreclosure proceedings, the judgment being against Coombs and not

Page 701

against the Moores, there being no privity between Coombs and the Moores as to the judgment against Coombs.

Reversed.

WHITFIELD, P. J., and BROWN and BUFORD, J. J., concur.

DAVIS, C. J., and TERRELL, J., concur in the opinion and judgment.