Blume v. Giles
| Decision Date | 02 July 1940 |
| Citation | 197 So. 344,143 Fla. 615 |
| Parties | BLUME v. GILES et al. |
| Court | Florida Supreme Court |
Suit by J. Walter Blume, as executor of the last will and testament of Olivia Bryan Burnett, deceased, against Ruby Strickland Giles, individually and as administratrix of the estate of H M. Strickland, deceased, Drew Land, E. L. Loughridge, and others, for foreclosure of mortgage on certain realty, for cancellation of tax deed on realty, and for a temporary injunction restraining defendants Land and Loughridge from cutting or removing timber from the land or shipping or selling any of the timber which they had already cut. From order dismissing the bill of complaint as to defendants Land and Loughridge and from order dissolving the temporary injunction, the plaintiff appeals.
Affirmed. Appeal from Circuit Court, Suwannee County; R H. Rowe, judge.
J. L Blackwell, of Live Oak, for appellant.
Davis & Davis, of Madison, for appellees.
Appellant by his bill of complaint, filed March 24, 1938, in the Circuit Court of Suwannee County, sought to foreclose a mortgage on certain real property of the mortgagors, H. M Strickland, and his wife, Ruby Strickland. The bill alleged that the mortgage had been originally executed and delivered to Franz Schmidt and Esther E. Schmidt on September 10, 1925 and was recorded on September 28, 1925; that in 1928 the said Esther and Franz Schmidt assigned the said mortgage to Olivia B. Burnett, the assignment being recorded on November 26, 1928; that Olivia B. Burnett died on November 11, 1935, and that appellant, J. Walter Blume, was appointed and qualified as executor of her last will and testament. The bill further alleged that Drew Land, appellee herein, is the holder of a tax deed which he acquired in the early part of 1938 to a part of the land on which foreclosure is sought; that the said tax deed is void as to appellant, mortgagee, because the clerk of the court in issuing the said tax deed did not comply with the provisions of Chapter 17457, Acts of 1935, § 4 (C.G.L.Perm.Supp. § 999(139), which requires the mailing of notice of application for tax deed to the holder of 'each mortgage which appears of record against said property, if the address of such mortgage holder be known to the clerk'; that appellees, Drew Land and his associate, E. L. Loughridge, have been cutting and removing and are continuing to cut and remove the timber from the property on which Land has a tax deed; that the appellant's mortgage security is thereby being rapidly depleted.
The bill prayed foreclosure of appellant's mortgage against the mortgagors, that the tax deed of Drew Land be adjudged null and void and that it be cancelled, and, further, that a temporary restraining order or temporary injunction be granted restraining the appellees, Land and Loughridge, and their agents, servants, and employees from cutting or removing timber from the land or shipping or selling any of the timber which they had already cut.
A temporary restraining order was entered enjoining the appellees from cutting and removing the timber, but this order was later dissolved upon motion of appellees. Motion was also filed to dismiss the bill of complaint as to the appellees, Drew Land and E. L. Loughridge, and this motion was likewise granted. From the order dismissing the bill of complaint as to appellees and the order dissolving the temporary injunction this appeal has been taken.
As stated in Hecht v. Wilson, 107 Fla. 421, 144 So 886, 887, 145 So. 250: 'The proper scope of a foreclosure suit is merely to enforce the mortgage lien against the title or interest of the mortgagor and those claiming under him, and the great weight of authority sustains the view that, without special features of equitable nature to authorize such action, one claiming adversely to both mortgagor and mortgagee by paramount title cannot be joined as a defendant to the suit.' The holder of a tax deed does not stand in the shoes of the mortgagor or his heirs in the assertion of rights, but claims under a new, original and paramount title, entirely disconnected with that of the mortgagor. Therefore, the validity of a tax deed cannot be adjudicated in a suit to foreclose a mortgage lien against the title or interests of the mortgagor and those claiming under him. Brown v. Atlanta National Building & Loan Ass'n, 46 Fla. 492, 35 So. 403; Hecht v. Wilson, supra; ...
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