Bauman v. Healy

• Decision Date: 30 May 1939
• Citation: 193 So. 773,141 Fla. 478
• Parties: BAUMAN v. HEALY et al.
• Court: Florida Supreme Court

193 So. 773

141 Fla. 478

BAUMAN v. HEALY et al.

Florida Supreme Court, Division B.

May 30, 1939

On Rehearing November 21, 1939.

Second Petition for Rehearing Denied February 16, 1940.

Suit to foreclose a mortgage by J. E. Healy against Norwood H Andrews and others. From a final decree of foreclosure Katharine S. Bauman, a widow, appeals.

Reversed with directions.

BROWN and CHAPMAN, JJ., dissenting.

On Rehearing.

On Second Petition for Rehearing. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.

COUNSEL

Henry K. Gibson and Murrell & Malone, all of Miami, for appellant.

H. V Whitehurst, Carl T. Hoffman, and L. L. Robinson, all of Miami, for appellee.

OPINION

PER CURIAM.

This is an appeal from a final decree in favor of the plaintiff below foreclosing a certain mortgage executed by Norwood H. Andrews and wife on June 22, 1925, to the plaintiff J. E. Healy, to secure the payment of three promissory notes in the sum of $1166.66 each due in one, two and three years after date together with interest thereon at the rate of 8 per cent per annum, which mortgage was duly filed for record on July 26, 1925, and encumbered two lots in Atlantic Heights Subdivision located in Dade County. The bill alleged that no part of the aggregate principal sum of $3500 had been paid. The bill named as parties defendant Norwood Andrews and his wife; John P. Jaeger, a single man; Katharine S. Bauman, a widow, and Oliver P. Searing and wife. Paragraph 10 of the bill of complaint reads as follows:

'Plaintiff alleges further and says that the said Oliver P. Searing who is made a party defendant to this suit was on the 7th day of December, A. D. 1930, the owner and holder of one certain first mortgage encumbering the property herein sought to be foreclosed, which said mortgage was made and executed by the plaintiff, J. E. Healy, and his wife, to said defendant, Oliver P. Searing. That the said Oliver P. Searing did on the December 7, 1930, cause to be obtained a tax deed on the property herein described, by and through the defendant, John P. Jaeger. That the defendant, Oliver P. Searing did on, December 8, 1930, cause and had the said John P. Jaeger, a single man, to execute and deliver a special warranty deed to Katharine S. Bauman, a widow, herein made defendant, who is the sister of the said defendant, Oliver P. Searing. That in truth and in fact, the said Oliver P. Searing was then and is now the owner of said tax deed, although it was obtained in the name of the said John P. Jaeger; and that the said defendant, Oliver P. Searing, while the owner and holder of said first mortgage and notes made by the plaintiff and his wife, did bring suit upon the promissory notes against your plaintiff by common law action and compelled your plaintiff to pay and satisfy said notes and mortgage, and at the same time the said notes and mortgage were satisfied by the plaintiff, the said Oliver P. Searing owned and controlled the said tax deed obtained on said property and on which the said Oliver P. Searing held a first mortgage which has now been paid and satisfied by the plaintiff.

'Whereof, plaintiff alleges and says that the defendants, John P. Jaeger, a single man, and Katharine S. Bauman, a widow, are not bona fide holders and owners of the said tax deed and special warranty deed; and that the said interest so held by them in said property should be set aside and held for naught, and declared to be inferior to the plaintiff's rights, title and interest in the property herein sought to be foreclosed, by decree of this Honorable Court.'

'Plaintiff hereby offers to tender into the registry of this Court the sum of money so expended by the said defendants in obtaining said tax deed, in accordance with the laws made and provided in such cases.'

The defendants Oliver P. Searing and his wife, Marie H. Searing, Katharine S. Bauman and John P. Jaeger all filed separate answers and motions to dismiss the bill.

The further history of the case, both as to the pleadings and the facts, and his conclusions as to the facts and the law of the case, are so clearly and succinctly stated in the report of the Special Master, Hon. T. J. Dowdell, who was appointed in the case, that we will quote in part from such report, as follows:

'In short the answer of Marie H. Searing, the wife of Oliver P. Searing merely disclaims knowledge as to every material allegation in the bill and concludes with a motion that said bill be dismissed upon the ground that defendant, John P. Jaeger was a tax deed holder and the defendant, Katharine S. Bauman was his successor in title and that therefore a tax title owner is not a proper defendant in a mortgage foreclosure.

'In his answer, Oliver P. Searing states that he is without knowledge concerning the allegations set forth in paragraphs 3, 5, 6, 7, 8 and 9. He further denies all the allegations of paragraph 10 except admitting that he brought a common law action against plaintiff on the promissory notes which had been given him, as a part of the purchase price when the lots in question were originally purchased by plaintiff in this action. In further answer to the allegations of paragraph 10 of the bill this defendant states that he was never acquainted with the defendant, John P. Jaeger; that he knew in the latter part of the year 1930 that a tax deed was about to be issued; that he requested the Clerk of this Court to hold off the issuing of such deed until he could secure the money and redeem the property. That he was informed by said official that the issuance of said tax deed could not be put off; and that, under such conditions, he thereupon induced his sister, the defendant, Katharine S. Bauman, to purchase the property from the defendant Jaeger, and to take title to said property by securing a special warranty deed from said defendant Jaeger. That, thereupon, Mrs. Bauman, who is his sister, took his advice and for a valuable consideration secured a special warranty deed from the said defendant Jaeger, under date of December 8th, 1930. That since December 7th 1930, when the tax deed was issued to the defendant, Jaeger, he had not claimed any right, title or interest in or to the premises described in the bill of complaint. That the money used to secure the special warranty deed was furnished solely by his sister, Mrs. Bauman, who is now the bona fide owner of the premises. That upon securing the delivery of the special warranty deed, as agent for Mrs. Bauman, and, acting in her behalf, he went upon and took possession of the premises, and planted shrubs and trees thereon and in addition posted the premises and caused posts to be erected in each corner thereof. His answer concludes with a motion to dismiss the bill upon the ground that the defendant John P. Jaeger was a tax deed holder and the defendant, Katharine S. Bauman, was his successor, in title, and that therefore a tax title owner is not a proper defendant in a mortgage foreclosure action.

'In her answer the defendant Mrs. Bauman denies that the mortgage herein sought to be foreclosed is an encumbrance on the real estate therein described. She claims that she has a title paramount and superior to the claim of plaintiff, or any one else. In answer to paragraph 10 she admits she did know that her brother the defendant, Oliver P. Searing, had some interest in said real estate many years ago. She denies that her said brother caused a tax deed to be obtained and further denies that he was ever the owner of such tax deed. She disclaims any knowledge concerning a common law action brought by her brother against the plaintiff in this cause, whereby the notes and the first mortgage originally held by him to secure the payment of same had been satisfied. She says that in securing the special warranty deed from the defendant Jaeger, her said brother had no personal negotiations with said Jaeger, but the deed in question was in fact secured through the good offices of the Clerk of this Court. That she was never personally acquainted with said Jaeger. She then alleges that upon securing the deed in question she directed her brother to take all steps necessary to perfect her title and that it was under her directions that her said brother planted trees upon the property, posted the same in her name and caused posts to be placed at each of the four corners of the two parcels of land. That, thereafter, she paid taxes upon the property the exact amount thereof being unknown to her. Her answer concludes with a prayer that the bill be dismissed and that a decree be entered adjudging her to be the owner of the property described in the bill of complaint free from any liens, claims or demands upon the part of plaintiff.

'In his answer the defendant, John P. Jaeger denies that the defendant, Oliver P. Searing caused the tax deed to be issued; he also denies that Searing was ever the owner of said tax deed, but that on the contrary same was obtained from the Clerk of this Court regularly and in the regular course of said defendant's business and occupation. He further alleges the truth to be that the execution and delivery of the special warranty deed from himself to the defendant Bauman was made without any conversation whatever, or request from defendant Oliver P. Searing.

'Based upon the pleadings and all of the testimony introduced as aforesaid, I, as Master, now make the following findings of fact.

'1. I find that this suit is an outgrowth of a typical boom time transaction. The two lots were purchased on March 25, 1925 from defendant, Oliver P. Searing, by plaintiff, J. E. Healy, the consideration being $15,000.00, of which $3500.00 was paid in cash and the balance evidenced by a purchase money mortgage and three notes each in the...