Century Trust Co. of Baltimore v. Allison Realty Co.

• Citation: 141 So. 612,105 Fla. 456
• Parties: CENTURY TRUST CO. OF BALTIMORE v. ALLISON REALTY CO. et al.
• Decision Date: 11 May 1932
• Court: Florida Supreme Court

141 So. 612

105 Fla. 456

CENTURY TRUST CO. OF BALTIMORE v. ALLISON REALTY CO. et al.

Florida Supreme Court

May 11, 1932

Commissioners' Decision.

Suit by the Allison Realty Company against the Century Trust Company of Baltimore and others, in which defendant named filed a cross-bill. From the decree, defendant named appeals.

Affirmed.

ELLIS and BROWN, JJ., dissenting. Appeal from Circuit Court, Dade County; Paul D Barns, Judge.

COUNSEL

Kurtz &amp Reed, of Miami, and John Hinkley and Chas. S. Lerch, both of Baltimore, Md., for appellant.

Shutts & Bowen, of Miami, for appellees.

OPINION

DAVIS C.

On May 19, 1928, the Allison Realty Company filed its bill of complaint for the foreclousure of a mortgage given by Coral Gables Corporation to John B. Orr, Inc., and assigned to the said Allison Realty Company. The bill also sought to establish and foreclose a mechanic's lien on the property described in the bill of complaint and also described in said mortgage, for work and labor performed in the erection of a building upon said property by John B. Orr, Inc., which lien is alleged to have been assigned to the said Allison Realty Company. The Coral Gables Corporation filed a plea to the bill of complaint, wherein it was alleged that John B. Orr Inc., was the owner of a contract made and entered into between John B. Orr and the Coral Gables Corporation, and under the contract the owner agreed to pay the contractor the costs incurred in the performance of the contract and the commission in the form of a set fee of $50,000; that on October 15th, A. D. 1926, said defendant made, executed, and delivered to the said John B. Orr, Inc., the mortgage sought to be foreclosed, and that it was then and there understood and agreed that said mortgage should be in full and complete accord and satisfaction of all sums of money agreed and promised to be paid by said defendant to the said John B. Orr, Inc., and that said defendant had full paid and discharged the debt secured by said mortgage, and further that the defendant had parted with the title to the property. This plea was thereafter, by order of the court, allowed to stand as an answer to the bill. An answer was filed by the Baldwin Investment Corporation. The Century Trust Company of Baltimore interposed an answer to the bill of complaint, including in said answer a demurrer to the bill, and also filed a cross-bill, in which it made all parties to the original bill cross-defendants, and in which it sought to establish three mortgages held by it as being prior to the mortgage and lien sought to be foreclosed under the original bill, and asked for foreclosure of said three mortgages. An answer to the cross-bill was filed by the Allison Realty Company, which answer contained a denial of the priority of the mortgages held by the Century Trust Company of Baltimore over the mortgage and lien set up in the original bill. The cause was referred to a general master, who, after hearing the testimony, reported to the court as his findings, that the mortgage held by the Allison Realty Company should be construed to secure only amounts that were due at the time it was executed, and that the same had been paid, but that the complainant, the Allison Realty Company, was entitled to a mechanic's lien, and that such lien was prior and superior to the liens and interests of the Century Trust Company of Baltimore and the other parties to said cause. Exceptions were filed to said report by both the Century Trust Company of Baltimore and the Allison Realty Company. Upon final hearing, the court confirmed the master's findings and decreed that the mortgage held by the Allison Realty Company had been paid, but that the complainant, the Allison Realty Company, was entitled to a lien on account of the Orr building contract in the amount of $48,754.86, together with interest from January 10, 1929, and that such lien was prior and superior to the three mortgages held by the appellant. From this decree an appeal was entered by the Century Trust Company of Baltimore. A number of errors have been assigned by appellant, and cross-assignments of error have been filed by the Allison Realty Company. One of the principal grounds of contention between appellant and the Allison Realty Company is based upon a provision in the mortgage from Coral Gables Corporation to John B. Orr, Inc., and held by the Allison Realty Company as assignee, which reads as follows:

'It is understood and agreed by and between the parties hereto that the balance due and unpaid, if any, by Coral Gables Corporation to John B. Orr, Inc., for the construction of a certain building known as the Douglas Entrance on the above described property, according to a contract dated August 5, 1929, between John B. Orr, an individual, and Coral Gables Corporation, which contract was assumed by John B. Orr, Inc., shall be added to the indebtedness secured hereby, and is hereby included in the lien of this mortgage.'

It may be said that this mortgage secured six promissory notes, maturing at different times, copies of which were therein set out, aggregating the sum of $30,000, and the record reveals that at the time of giving the mortgage there was due to John B. Orr, Inc., under the contract, approximately $100,000, a part of which was thereafter paid in cash and the balance, with the exception of the amounts represented by said notes, in pursuance of a verbal agreement, was paid by transfer and delivery of stock of the Coral Gables Corporation to John B. Orr, Inc.

The complainant, the Allison Realty Company, sought to show by parole testimony that the mortgage held by it was intended to cover all amounts that might become due to the mortgagee under the contract for the construction of the building on the property described in the mortgage, but testimony along this line was excluded by the master, and the exclusion of such testimony forms the basis for cross-assignments of error relied upon by the Allison Realty Company. If it should be held that the mortgage covers the amount that became due for work and labor performed, and also for materials furnished subsequent to the execution and delivery of said mortgage, and that the mortgage should be enforced, there is no basis for a claim that a lien for such work and labor and for material so furnished should be enforced; it being agreed by both parties that the indebtedness alleged to be secured by both liens is the same, and that the property involved is the same.

It is stated in brief of appellant that the appeal, as far as it is concerned, presents two major questions which are set out as follows:

'1. Did the court err in overruling, at final hearing and by final decree, the demurrer included in the appellant's amended answer to the bill of complaint?

'2. Did the court err in decreeing, by its final decree, that the Allison Realty Company was entitled to a lien, and that such lien was prior to the three mortgages held by appellant?'

The demurrer as it is incorporated in the answer is addressed to the whole bill, and, in support of the demurrer, the one question argued here is that the bill is multifarious, and that for that reason the demurrer thereto should have been sustained by the chancellor. However, the bill does not seem to have been expressly demurred to upon that ground.

It is the rule here that, in passing on a demurrer to the entire bill, only such grounds as are applicable to the whole bill will be considered, and that a demurrer to the entire bill should be overruled, if there is any equity in the allegations of the bill, even though grounds for a special demurrer exist in parts of the bill. Mitchell v. Mason, 65 Fla. 208, 61 So. 579; Warren v. Warren, 66 Fla. 138, 63 So. 726; Prince v. Mahin, 73 Fla. 525, 74 So. 696; Downing v. Carlton, 76 Fla. 490, 80 So. 57. See, also, Leavine v. Belt Automobile Ind. Ass'n, 88 Fla. 553, 102 So. 768; Reinschmidt v. Louisville & N. R. Co., 90 Fla. 334, 106 So. 126; Prest v. Hammock, 92 Fla. 941, 111 So. 112; Oakland Properties Corp. v. Hogan, 96 Fla. 52, 117 So. 850; Dittmar v. Woods-Hoskins-Young Co., 98 Fla. 513, 123 So. 919; Clapp v. Coral Gables Corporation, 98 Fla. 1230, 125 So. 369; Stokes v. Victory Land Co., 99 Fla. 795, 128 So. 408; Orange Belt Land Exchange v. Speer, 100 Fla. 182, 129 So. 779.

This court has also held that multifariousness is ground for demurrer whenever it plainly appears in a bill. Murrell v. Peterson, 57 Fla. 480, 49 So. 31; Trust Co. of Florida v. Crider (Fla.) 136 So. 434; Robinson v. Springfield Co., 21 Fla. 203.

'Broadly speaking, 'multifariousness' in a bill may be defined as 'the improperly joining in one bill distinct and independent matters, and thereby confounding them.' There are at least two general and distinct forms of multifariousness, one consisting in uniting in the same bill distinct and disconnected subjects, matters, or causes; the other consisting in joining in the same suit, either as complainants, or defendants, parties who are without a common interest in the subject of the litigation and have no connection with each other.' Trust Company of Florida v. Crider (Fla.) 136 So. 434, 436; Murrell v. Peterson, 57 Fla. 480, 49 So. 31.

To render a bill multifarious for misjoinder, it must contain two or more distinct causes of action that cannot properly be joined in one bill of complaint. Mountein v. King, 75 Fla. 12, 77 So. 630, 631; Johnson v. Benbow, 93 Fla. 124, 111 So. 504, 507. In Mountein v. King, supra, this court quoted with approval the following:

"Frequently the fact that demands which are otherwise entirely distinct relate to the same subject-matter affords a sufficient connection to justify their union in one bill, and avoids an objection for multifariousness. * * *

"In...