Brown v. Atlanta Nat. Building & Loan Ass'n

• Decision Date: 17 November 1903
• Citation: 46 Fla. 492,35 So. 403
• Court: Florida Supreme Court
• Parties: BROWN et al. v. ATLANTA NAT. BLDG. & LOAN ASS'N.

35 So. 403

46 Fla. 492

BROWN et al. v. ATLANTA NAT. BLDG. & LOAN ASS'N.

Florida Supreme Court, Division B.

November 17, 1903

Appeal from Circuit Court, Sumter County; William A. Hocker, Judge.

Bill by the Atlanta National Building & Loan Association against J N. Brown and others. Decree for plaintiff, and defendants appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. The holder of a tax deed to mortgaged premises, claiming title adverse and paramount to both mortgagor and mortgagee, is not ordinarily a proper party defendant to a suit to foreclose the mortgage.

2. A tenant of mortgaged premises who is under no obligation to pay taxes thereon may lawfully acquire a tax title to the premises, and therefore cannot, upon the ground that he is by reason of his tenancy estopped from asserting such title, be made a party defendant to a suit for foreclosure of the mortgage.

3. One who acquires a tax certificate to land, and thereafter becomes a tenant of the owner thereof, but who assumes no obligation to pay taxes on the land, and notifies the owner of his tax claim and of his intention of procuring a deed to the land if it is not redeemed, is not estopped by his tenancy from procuring such deed.

COUNSEL J. B. Gaines, for appellants.

Wm. F Himes, for appellee.

OPINION

The appellee, complainant below, filed a bill for foreclosure of mortgage, making as parties defendant thereto the administrator widow and heirs of the mortgagor, and the appellants. The bill alleged default on the part of the mortgagor, and that thereafter and prior to his death the complainant accepted from him the mortgaged premises in satisfaction of the mortgage debt, and had ever since claimed and exercised the rights of ownership and possession of the premises and paid taxes thereon, though no deed to the property had been executed to it; that from February, 1896, continuously until the 31st day of December 1897, the defendant J. N. Brown was for a valuable consideration a tenant of complainant on the premises leasing and enjoying the use, occupation, and yield thereof in turn agreeing to fence and keep in repair the premises and to pay the complainant rent, the terms of which tenancy said Brown fully executed; that in December, 1897, Brown obtained a tax deed to the premises upon a certificate obtained by him by purchase at a tax sale on November 6, 1895, for the pretended assessed taxes for the year 1894, under which deed Brown and his grantee, if any, claimed title paramount and adverse to that of complainant; that complainant was informed that in December, 1897, said J. N. Brown had executed a quitclaim deed to his stepmother, Leora J. Brown. The bill then alleges certain defects in the tax sale upon which the deed was based, and, after praying foreclosure of the mortgage against the representatives and heirs of the mortgagor, asks that the tax title asserted by the Browns be canceled as a cloud upon complainant's title. No defense was interposed by the representatives of the mortgagor, and decree pro confesso was entered against them. Separate demurrers interposed to the bill by J. N. Brown and Leora J. Brown, upon the ground of want of equity, multifariousness, and the existence of a remedy at law, were overruled, and separate answers were filed by them. That of J. N. Brown alleged his purchase of tax certificate on November 6, 1895, for the taxes of 1894, and the procurement of tax deed thereunder on December 7, 1897; that on May 19, 1898, he was and for some months before had been continuously seised and possessed of said lands as of fee, and in the actual occupation and possession thereof, and on that date executed a deed thereto, for $50 bona fide paid, to Leora J. Brown and her heirs, who thereupon entered upon the lands, and was still seised and possessed of them; that said defendant J. N. Brown disclaimed all interest in the premises since the execution of said deed to L. J. Brown. The defendant admitted the renting of the premises by him from complainant as alleged in the bill, but said that his tenancy terminated on December 31, 1897, and that long before it began he notified complainant by letter, duly acknowledged, that he had purchased the lands at said tax sale, and unless they were redeemed would demand a tax deed therefor. He denied the execution of any conveyance thereof by him except that of May, 1898, and asked the same benefit from the answer as if he had demurred to the bill. The same facts are alleged with great detail in the answer of Leora J. Brown and her husband. The cause was set down for hearing upon bill and answers and the decrees pro confesso previously entered against the other defendants, and a final decree rendered in favor of the complainant, decreeing foreclosure and sale under the mortgage, that the possession of the mortgaged premises be surrendered to the purchaser at such foreclosure sale, and that the deeds to J. N. Brown and to Leora J. Brown, respectively, be canceled as a could upon the complainant's title. From this decree the defendants J. N. Brown and Leora J. Brown and her husband appeal.

MAXWELL, J. (after stating the facts).

The question presented by this record is that of the right of a complainant, in filing a bill for foreclosure of mortgage, to join as a party defendant thereto one holding adversely to both mortgagor and mortgagee under a claim of paramount title. The advantage of such a course to the complainant, if permissible, is obvious, as it enables him in one litigation to remove all obstacles to the enforcement of his debt, and to expose the mortgaged property for sale, freed from the cloud of an adverse claim of title. To the adverse claimant the practice is objectionable as entangling him in a contest between mortgagor and mortgagee with which he has no concern, and as depriving him, when in adverse possession of the premises, as is claimed here, of his right of trial at law and by jury.

The general rule undoubtedly is that 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. 'A court of equity is not an appropriate tribunal, nor is a foreclosure suit a suitable proceeding, for the trial of claims to the legal title which are hostile and paramount to the interests and rights and titles of both mortgagor and mortgagee.' Summers v. Bromley, 28 Mich. 125; Dial v. Reynolds, 96 U.S. 340, 24 L.Ed. 644; Banning v. Bradford, 21 Minn. 308, 18 Am. Rep. 398; 68 Am. St. Rep. 354, note, where the subject is exhaustively discussed and authorities collected; 9 Ency. Pl. & Pr. 353.

Courts have, it is true, been more liberal in...