Delesdernier v. O'Rourke & Warren Company

• Decision Date: 15 August 1962
• Docket Number: No. 19449.,19449.
• Citation: 305 F.2d 929
• Parties: Gloria DELESDERNIER, wife of Paul Marchand, Appellant, v. O'ROURKE & WARREN COMPANY et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

305 F.2d 929 (1962)

Gloria DELESDERNIER, wife of Paul Marchand, Appellant, v. O'ROURKE & WARREN COMPANY et al., Appellees.

No. 19449.

United States Court of Appeals Fifth Circuit.

August 15, 1962.

Burton B. Loebl, North Miami Beach, Fla., for appellant.

Philip R. Kelley, Kissimmee, Fla., John R. Gould, Vero Beach, Fla., T. W. Conely, Jr., Okeechobee, Fla., for appellees.

Before TUTTLE, Chief Judge, and RIVES and BROWN, Circuit Judges.

TUTTLE, Chief Judge.

This is an appeal by the plaintiff in the trial court from an order dismissing her suit for recovery of title to real property in Florida, which formerly belonged to her deceased father. The basic facts are not in disagreement, since, of course, the facts alleged in the complaint must, for the purpose of the motion to dismiss, be taken as true.

Appellant was born a month or two after the death of her father, who died intestate on September 13, 1924, leaving about 2700 acres of real property in the state of Florida. The plaintiff claims her intestate share of this property. Her mother, "Angie," applied to the Judge of the County Court of Osceola County, Florida, to be appointed guardian of appellant and her two minor brothers. The two brothers were killed during the second World War and presumably their interest passed to their mother, who still survives. This appointment was made by the County Court. Thereafter, Angie applied to the court for permission to sell the property which she held for the children and for herself individually, it being undisputed that she had a one-fourth undivided interest in the estate. On July 28, 1925, the court granted this permission and ordered a sale of the property to O'Rourke & Warren Company, one of the defendants in this action. The deed was executed on August 28, 1925, and the court duly confirmed the sale. The deed and the order authorizing it, both described the terms of sale, which were $40,000 of which $15,000 was to be paid in cash and the rest to be paid in three equal annual installments. A purchase money mortgage was executed by O'Rourke & Warren Company in favor of Angie, both in her individual capacity and as guardian. This deed was recorded on September 11, 1925. It is alleged that the mortgage was also recorded but the date of its recording is not specified. On July 26, 1927, Angie, without any consideration for doing so, entered the word "satisfied" on the mortgage. This satisfaction of the mortgage was not recorded until October 15, 1927. Prior to that, on October 12, 1927, O'Rourke & Warren Company reconveyed the property to Angie individually and with no reference to her guardianship. Thereafter Angie, personally, made sales of the property to certain of the other defendants. The proceeds of these sales were not accounted for in the guardianship proceedings.

Appellant's theory as to her right of recovery is that the record facts — that the property was sold under a court order as a guardian's deed; that the guardian received as part payment for the conveyance a purchase money mortgage; and that the guardian, in her own individual right and not as guardian, took back a warranty deed to the property at a time when the mortgage had not been satisfied of record and that a few days later a satisfaction of the mortgage, executed two months previously, was recorded — charged all purchasers from Angie with such notice as would require them to ascertain the true facts as to how Angie became the owner of fee simple title in property which she had previously conveyed as guardian and against which she still held an unsatisfied mortgage as guardian, and further that her satisfaction of the mortgage was without consideration other than the reconveyance of the property to her in her individual capacity.

The appellant also contends that the original appointment of the guardian was void because at the time of her appointment Angie was in fact a resident of the state of Louisiana, and was not eligible to be appointed guardian of the person or property of the appellant in the state of Florida. There is no merit to this contention, since the appointment by the county court can not be attacked collaterally for matters that do not appear on the face of the record, Lee v. Patten, 34 Fla. 149, 15 So. 775.

The validity of appellant's principal contention, stated above, depends, it seems to us, on the construction of the Florida case of Sapp v. Warner, 105 Fla. 245, 141 So. 124, 143 So. 648, 144 So. 481. Appellant pitches her whole case on this decision by the Supreme Court of Florida. Appellees make no effort to challenge the present authority of the rule there laid down. In fact they cite no Florida cases touching on the point in issue.

The Sapp case dealt with a sale by a guardian, who, like the guardian here, took back a purchase money mortgage. The guardian failed to record the mortgage, and the purchasers of the property later sold it to persons who were otherwise innocent purchasers without actual or record notice of the existence of the mortgage. However, the Florida court held that since the deed showed on its face that it was a guardian's deed, and since a guardian's deed would have no validity except by being authorized by an order of the probate court, there was a duty on the purchasers from the grantee in a guardian's deed to examine the record of the County Court touching on the matter of the sale and that such examination would have disclosed that there was an outstanding mortgage in favor of the guardian. The court, therefore, affirmed the action of the chancellor who permitted the guardian to foreclose the unrecorded mortgage. Pointing out the effect, as to notice, of the mere fact that a deed is a guardian's deed, the Florida Supreme Court said:

"Absence of recitals of the court proceedings cannot change the legal status of the instrument as being a guardian\'s deed whose essential validity can only be sustained when shown to be predicated upon valid preliminary proceedings before the county judge, necessary to have

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