
    John A. DRAGSTREM and Janet K. Dragstrem, his wife, Appellants, v. Willis N. BUTTS and Elizabeth L. Butts, his wife, Appellees.
    No. LL-458.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1979.
    On Rehearing Jan. 24, 1980.
    John A. Dragstrem, in pro. per.
    William H. Maness of Maness & Kacher-gus, Jacksonville, for appellees.
   ROBERT P. SMITH, Jr., Judge.

Dragstrem appeals from a final summary judgment of foreclosure, holding that the purchase money mortgage held by Butts, the seller and mortgagee, is a lien on Drag-strem’s land to the extent of unpaid principal and interest, together with fees and costs, due under the mortgage note, and ordering the property sold' to satisfy the lien. This property was the subject of related fraud litigation, ended adversely to Dragstrem, by Butts v. Dragstrem, 349 So.2d 1205 (Fla. 1st DCA 1977), cert. den., 361 So.2d 831 (1978).

The court did not err in considering the motion for summary judgment while Drag-strem’s motion to dismiss was pending and before he answered. Fla.R.Civ.P. 1.510(a). But it appears from the irregular “response” and affidavit filed by Dragstrem opposing the summary judgment motion that Dragstrem may have, and be able to plead and prove, a right to set off against the mortgage note indebtedness the damages he says he sustained as the result of Butts’ breach of a warranty of title, in the deed of conveyance, as a result of which Dragstrem was disabled to consummate a sale of the land to a third party buyer. While a breach of a warranty of title by the seller-mortgagee is not as such a complete defense to foreclosure, absent eviction of the mortgagor or actionable fraud by the mortgagee, the damages sustained by the mortgagor resulting from the breach may be set off against or recouped from the outstanding mortgage debt. Adams v. Fry, 29 Fla. 318, 10 So. 559 (1892); Johnson v. Green, 54 So.2d 44 (Fla.1951); Coy v. Downie, 14 Fla. 544 (1874); Etter v. State Bank of Florida, 76 Fla. 203, 79 So. 724 (1918); 3 Jones, Mortgages, Section 1906 (8th ed. 1928); Hendricks v. Stark, 99 Fla. 277, 126 So. 293 (1930). In keeping with the usual strictures against summary judgments, none should have been entered unless and until Butts demonstrated that there was no genuine issue as to the material facts asserted by Dragstrem on the record and that Butts was entitled to judgment as a matter of law. Dragstrem should have been allowed to attempt a pleading of his partial defense, or set-off, for breach of a warranty of title.

REVERSED.

MILLS, C. J., and SHIVERS, J., concur.

ON PETITION FOR REHEARING

ROBERT P. SMITH, Jr., Judge.

Appellees, by their petition for rehearing, have called to our attention that Dragstrem’s potential cause of action for breach of warranties of title, described in my opinion filed October 25, 1979, was pleaded as such by count II of Dragstrem’s amended complaint, filed February 6, 1976, and was tried before a jury in the proceedings which led to the judgment considered and reversed by our decision in Butts v. Dragstrem, 349 So.2d 1205 (Fla.1st DCA 1977), cert. den., 361 So.2d 831 (Fla.1978). Dragstem’s count II, alleging damages sustained as a result of a breach of warranties of title, was withdrawn from the jury’s consideration by a directed verdict for Butts, for failure of proof by Dragstrem. The trial court judgment therefore terminated Dragstrem’s alleged cause of action as described in my opinion for the court filed October 25, 1979, and Dragstrem did not cross-appeal that adverse ruling when we considered and vacated his fraud judgment more than two years ago. The termination of that warranty claim on the merits, for failure of proof, is conclusive against Dragstrem on principles of res judicata. Gordon v. Gordon, 59 So.2d 40 (Fla.1952); Cole v. First Development Corp. of America, 339 So.2d 1130 (Fla.2d DCA 1976).

We have considered whether Drag-strem failed in proving “purely technical” or preliminary matters essential to his claim, rather than its essential merits, so avoiding the res judicata effect of prior litigation. E. g., Kent v. Sutker, 40 So.2d 145, 147 (Fla.1949). It appears he did not introduce the warranty deed into evidence, so he failed to prove the alleged warranties. He also failed to prove the title defects which allegedly gave rise to the breach of warranties of title. The directed verdict rested on those grounds. However readily the missing evidence might have been adduced, it was central to the merits of Drag-strem’s claim, and the ruling against Drag-strem was on the merits. Res judicata bars Dragstrem’s warranty claim.

The petition for rehearing is GRANTED and the judgment of the circuit court is AFFIRMED.

MILLS, C. J., and SHIVERS, J., concur.  