Brett v. First Nat. Bank

• Decision Date: 25 February 1929
• Citation: 120 So. 554,97 Fla. 284
• Parties: BRETT v. FIRST NAT. BANK OF MARIANNA.
• Court: Florida Supreme Court

120 So. 554

97 Fla. 284

BRETT v. FIRST NAT. BANK OF MARIANNA.

Florida Supreme Court, Division B.

February 25, 1929

Suit by the First National Bank of Marianna, a corporation, against H. J. Brett. From a decree for complainant, defendant appeals.

Reversed in part, affirmed in part, and remanded.

Syllabus by the Court

SYLLABUS

Mortgagee can recover from mortgagor only customary fee paid or agreed to be paid solicitor for services in foreclosure proceedings. Fee allowed mortgagee for his solicitor's services in foreclosure proceedings being intended as indemnity for expenditures necessarily made or incurred to protect his interest, he can recover from mortagor only usual and customary fees which he has paid or obligated himself to pay solicitor.

Allegation that mortgage was placed in solicitors' hands for foreclosure and evidence of reasonable fee for their services held insufficient to warrant allowance thereof. Allegation in bill to foreclose mortgage, that note and mortgage were placed in hands of plaintiff's solicitors for collection and foreclosure, and testimony of two disinterested solicitors as to reasonable fee for such services, held insufficient basis for decree allowing solicitors' fees where sufficiency of allegation was raised by pleading and proof objected to; there being no allegation and proof that complainant paid or obligated itself to pay solicitors any fixed or determinable sum.

Burden is on mortgagee in foreclosure proceedings to prove right to recover solicitors' fees and establish basis for computing amount. Defendant in mortgage foreclosure proceeding does not have burden of proving that complainant has not paid or obligated itself to pay its solicitors sum allowed by chancellor as fees for their services, burden being on complainant to prove right to such recovery and establish basis for computation or determination of amount.

Appeal from Circuit Court, Walton County; Thomas F West, judge.

COUNSEL

W. W. Flournoy, of De Funiak Springs, for appellant.

Carter, Solomon & Welch, of Marianna, for appellee.

OPINION

GIBLIN Circuit Judge.

The sole question presented by this appeal, which is from a final decree in a suit for the foreclosure of a real estate mortgage lien, is whether the chancellor below erred in decreeing that the complainant (appellee) should recover from the defendant (appellant) the sum of $500 as solicitors' fees for the services of the complainant's solicitors in the suit; the chancellor having determined such sum to be reasonable.

The involved mortgage deed contained a stipulation under which reasonable solicitors' fees were recoverable.

In view of the conclusion we have reached, we are not called upon to decide whether the sum allowed as solicitors' fees by the chancellor was reasonable or excessive. Had the complainant, by proper allegations and proof, shown itself to be entitled to the recovery of reasonable solicitors' fees, the question of whether the allowed sum is reasonable or excessive would be the subject of our consideration. The complainant has not, in our opinion, established a right to the recovery of solicitors' fees.

In foreclosure proceedings in our state, the fee allowed the mortgagee for the services of his solicitor in the proceedings is intended as an indemnity to the mortgagee for expenditures necessarily made or incurred to protect his interest. United States Savings Bank v. Pittman, 80 Fla. 423, 86, So. 567.

The proper inquiry in cases of such character is, therefore, what has the mortgagee paid, or become liable to pay, to his solicitor for the services of the latter, and is it the usual and customary fee paid for such services? Jevne v Osgood, 57...