Case v. Smith

Citation200 So. 917,146 Fla. 340
PartiesCASE et ux. v. SMITH et ux.
Decision Date07 March 1941
CourtFlorida Supreme Court

Rehearing Denied March 27, 1941.

Suit by Chester H. Smith and another against Francis M. Case, and wife, to foreclose purchase-money mortgage. From a decree for plaintiffs, defendants appeal.

Affirmed. Appeal from Circuit Court, Marion County; F. R Hocker, judge.

COUNSEL

H. M Hampton, of Ocala, for appellants.

Wallace E. Sturgis, of Ocala, for appellees.

OPINION

CHAPMAN Justice.

The record in this case discloses that on April 2, 1932, John J Walsh and wife executed and delivered to Chester H. Smith and wife a purchase price mortgage for certain described real estate situated in Marion County, Florida. The amount of the indebtedness was evidenced by forty-one notes aggregating $4,000 and matured monthly over a period of time from May 25 1932, until July 2, 1935. Walsh made some payments on the indebtedness and on June 20, 1933, conveyed the property described in the mortgage to Francis M. Case and wife, subject to the unpaid purchase price of the described real estate evidenced by the said notes and mortgage.

On May 9, 1934, Chester H. Smith and wife transferred and assigned to Dr. J. C. Vinson, of Tampa, Florida, twelve of the said notes. On September 22, 1934, Dr. Vinson filed in the Circuit Court of Marion County, Florida, a suit to foreclose in which it was alleged that the note maturing August 25, 1934, had matured and remained unpaid. Francis M. Case was a party defendant in the Vinson suit, but our search of the record fails to show that Chester H. Smith and wife, or either of them, were made parties or otherwise appeared therein. Numerous pleadings were filed by the parties and the case was dismissed by an order of the court dated December 22, 1937, under the provisions, it is asserted, of Chapter 14554, Acts of 1929, Ex.Sess., Laws of Florida.

Dr. J. C. Vinson reassigned, transferred and endorsed over to Chester H. Smith, without recourse, the twelve notes owned by him and involved in the suit dismissed on December 22, 1937. On March 29, 1938, Chester H. Smith and wife filed in the Circuit Court of Marion County, Florida, their bill of complaint for the purpose of foreclosing the purchase price mortgage and made Francis M. Case and wife, Carrie S. Case, parties defendant. It was alleged therein that John J. Walsh and wife, Pearl E. Walsh, on June 28, 1933, conveyed the mortgaged lands to Francis M. Case and Carrie S. Case, but that said conveyance was made subject to the unpaid balance due on the notes and mortgage. The bill of complaint is in the usual form, with a few additional allegations which appear therein.

On May 20, 1938, the defendants filed an answer to the bill to foreclose, in which many of the material allegations are admitted to be true, inclusive of the unpaid balance evidenced by the twelve notes and purchase price mortgage. The answer then set out in detail a conspiracy between the plaintiff and J. C. Vinson, and after the recital of many facts, states that the acts and doings of these conspirators in law amount to a fraud on the defendants. It is stated that the lands conveyed were represented to be forty-six acres, but on a survey by a competent surveyor only forty and a fraction acres were actually transferred.

On January 2, 1940, the case as made by the pleadings was referred to Carl F. Crossley, with directions to take the testimony of the parties and to report the same in writing to the court, with his findings as to law and fact. The parties submitted their testimony and on final hearing the equities of the cause were decreed to be with the plaintiffs below, and from this final decree an appeal has been perfected to this court.

It is contended that the order of dismissal dated December 22 1937, of the foreclosure suit brought by Dr. J. C. Vinson under the provisions of Chapter 14554, supra, involving the identical notes and mortgage as are here involved, precludes, as a matter of law, the maintenance of the present suit. It is fundamental that the notes now before the court are negotiable and the mortgage is incidental thereto, and Dr. Vinson had a lawful right to assign or transfer the same. See American Central Ins. Co. v. Whitlock, 122 Fla. 363, 165 So. 380; Warren v. Seminole Bond & Mtg. Co., 127 Fla. 107, 172 So. 696. The law...

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6 cases
  • Motz v. Alropa Corp.
    • United States
    • Georgia Supreme Court
    • 15 Mayo 1941
    ... ... with the land and became obligatory upon any second company ... which became the purchaser' of the property. Only the ... facts in that case showed an entry by the grantee. A ... consideration of the Code section and of that decision came ... before this court in Alropa Corporation v ... v. Hanbury, 165 Ga. 534, 544-547, ... 141 S.E. 653; Trust Co. of Georgia v. Neal, 161 Ga ... 965, 132 S.E. 385. See also Case v. Smith, Fla., 200 ... So. 917. Accordingly, the petition was not subject to special ... demurrer, on the ground that the pleaded facts and the quoted ... ...
  • Motz v. Alropa Corp.
    • United States
    • Georgia Supreme Court
    • 15 Mayo 1941
    ...Co. v. Hanbury, 165 Ga. 534, 544-547, 141 S.E. 653; Trust Co. of Georgia v. Neal, 161 Ga. 965, 132 S.E. 385. See also Case v. Smith, Fla., 200 So. 917. Accordingly, the petition was not subject to special demurrer, on the ground that the pleaded facts and the quoted language of the assumpti......
  • Bliss v. Carmona
    • United States
    • Florida District Court of Appeals
    • 15 Junio 1982
    ...the three existing mortgages. Carmona, as vendee, was charged with full knowledge of the acceleration provisions, Case v. Smith, 146 Fla. 340, 200 So. 917 (1941), which in effect, prevented him from assuming the mortgages. Seeing this avenue closed, Carmona requested that the mortgagees ass......
  • Powell v. Gary
    • United States
    • Florida Supreme Court
    • 7 Marzo 1941
    ... ... Reversed ... COUNSEL ... [146 Fla. 336] L. W. Duval, of Ocala, for plaintiffs in error ... W. E ... Smith, of Ocala, for defendant in error ... OPINION ... BROWN, ... Chief Justice ... The ... defendant in error brought ... and, ordinarily, when questioned as to the fact, will say ... that he did not see or hear. Yet it is certain that in a ... case like this the defendant cannot be held liable for a ... failure of duty because the noise of the approaching train, ... the sounding of its ... ...
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