Berns v. Harrison

• Decision Date: 29 October 1930
• Citation: 131 So. 654,100 Fla. 1105
• Parties: BERNS et al. v. HARRISON.
• Court: Florida Supreme Court

131 So. 654

100 Fla. 1105

BERNS et al. v. HARRISON.

Florida Supreme Court

October 29, 1930

Commissioners' Decision.

Suit by Edward J. Harrison against Marie E. Berns and others. From the decree in complainant's favor, defendants appeal.

Motion to dismiss appeal denied, and decree reversed in part, and affirmed in part, and cause remanded, with directions, and former order and mandate modified. Appeal from Circuit Court, Hillsborough County; F. M. robles, judge.

COUNSEL

Altman Morrow & Cooper, of Tampa, for appellants.

Hampton & Bull, of Tampa, for appellee.

OPINION

ANDREWS C.

An appeal was taken to a final decree awarding $23,174.70 as total amount due on the mortgage debt, in which was included $2,000 solicitor's fee for complainant.

All appellants assigned as error the awarding of said solicitor's fee, while one of the appellants, Annie N Gibbons, wife of George A. Gibbons, deceased, in addition to the above assignment, separately assigned as error the court's findings that George A. Gibbons, deceased, and Annie N. Gibbons 'assumed and agreed to pay' the mortgage debt and that she 'was liable to complainant for the mortgage debt.' Assignments of error are not fatally defective because not jointly made, as the point raised by one appellant may be based upon a distinct ruling from other appellants. J., M. & P. R. R. Co. v. Broughton, 38 Fla. 139, 20 So. 829; 8 Standard Procedure 633; Finlen v Foster, 211 Ill.App. 609; Mote v. Morton, 46 Fla. 478, 35 So. 656.

As to the general assignment based upon the awarding of solicitor's fee, a reading of the bill of complaint will disclose that there is no allegation nor proof that complainant had agreed with his solicitors, or was obligated, to pay a fee in any amount. Where the point has been properly presented, this court has held that the fee to be allowed the holders of the mortgage for the services of his solicitors in a foreclosure of the mortgage debt is intended as an indemnity to the holder of the mortgage for expenditures necessarily made or incurred to protect his interest, and that the burden is on complainant to prove his right to such recovery and establish the basis for computation or determination of the amount. U.S. Savings Bank v. Pittman, 80 Fla. 423, 86 So. 567; Brett v. First Nat. Bank of Marianna, 97 Fla. 284, 120 So. 554; Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 779, 124 So. 284.

As to the contention of Annie N. Gibbons, it is noted that the bill of complaint alleges, and her deed filed in evidence shows, that she and her husband (now deceased) accepted a deed from a grantee of mortgagors in which they assumed and agreed to pay the said mortgage debt, and their immediate grantors had likewise accepted a deed with like provision.

In a very searching opinion of this court prepared by Circuit Judge Koonce in the case of Brownson v. Hannah, 93 Fla. 223, 111 So. 731, 734, 51 A. L. R. 976, it was considered that the weight of authority is that:

'Where a grantee in a deed poll knowingly accepts a deed in which the consideration is expressed as a certain amount, and 'other valuable considerations,' and such deed contains a clause that the grantee assumes the payment of a specified mortgage debt upon the land conveyed, he is as effectually bound by said deed as though it was an indenture deed inter partes.' See also Ackley v. Noggle, 97 Fla. 640, 121 So. 882; 41 C.J. 725,§ 771; Slottow v. Hull Investment Co., 129 So. 577, decided this term.

A motion was filed in this court to dismiss the appeal from final decree because: (1) An appeal is also pending taken from that portion of the order of confirmation of sale awarding a deficiency decree; (2) because the entry of appeal shows a joint appeal with one assignment of error, while Annie N. Gibbons filed separate and distinct assignment not included in the complete assignment of errors. The record discloses that heretofore said motion was continued until final hearing.

'An appeal may be taken upon matters arising after a final appealable judgment or decree which require the judicial action of the court in relation to the rights litigated in the main suit making necessary a substantive and important order or decree, when such order or decree partakes of the nature of a final decision of those rights.' Theo Hirsch Co. v. Scott, 87 Fla. 336, 100 So. 157, 158.

A subsequent decree confirming sale and awarding a deficiency may be considered as a continuation of the final decree. Fla. Fertilizer Mfg. Co. v. Hodge, 64 Fla. 275, 60 So. 127. The deficiency decree was contained in the order confirming the sale (...