Clements v. McLeod
Decision Date | 18 May 1945 |
Citation | 155 Fla. 860,22 So.2d 220 |
Parties | CLEMENTS v. McLEOD et ux. |
Court | Florida Supreme Court |
W. Wallace Shafer and Bentley & Shafer, all of Lakeland, for petitioner.
Bradford G. Williams, of Lakeland, for respondents.
This is an interlocutory certiorari proceeding to procure review of a stay order entered in a foreclosure suit by the chancellor below under authority of the Soldiers' and Sailors' Civil Relief Act 1940, as amended, 50 U.S.C.A.Appendix, § 501 et seq.
On February 9 1944, Russell M. McLeod and Virginia K. McLeod, his wife purchased a certain residence property in Polk County from Katherine Ann Caton Clements to be occupied by the grantees as their home. The agreed purchase price of the property was $3,860, a down payment of $2,000 cash being required and the remainder to be secured by purchase-money mortgage. McLeod and wife borrowed the sum of $2,000 from First Federal Savings & Loan Association of Lakeland, Florida, which was paid to the grantor as a down payment on the property. Contemporaneous with the payment, the grantees, with the consent of the grantor, gave a first mortgage on the property to the savings and loan association to secure the loan and gave to the grantor a second mortgage in the sum of $1,860 for the remainder of the purchase price due and unpaid. By the terms of this second mortgage the grantees agreed to retire the debt in monthly installments of $25 each commencing March 15, 1944.
On July 14, 1944 Katherine Ann Caton Clements filed suit in the Circuit Court of Polk County against McLeod and wife to foreclose her second mortgage because of a default in payment of the monthly installment due June 15, 1944; the plaintiff under a fifteen day acceleration clause contained in the mortgage, electing to declare the whole amount of the debt due and payable.
Thereafter, on October 12, 1944, and during the pendency of the suit, the defendant, Russell M. McLeod, filed his sworn petition in the cause seeking a stay of the foreclosure proceedings, under the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. Grounds of the petition were that at the commencement of the suit McLeod had been accepted by the United States Navy as a selectee under the provisions of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A. Appendix, § 301 et seq., and was then under orders for induction into the military forces of the United States on October 16, 1944; that he was the head of a family consisting of himself, his wife, and three children of very tender years; that he had purchased the property involved in suit for the purpose of providing a place of asylum for his wife and children in the event he should be called to military service; that he had punctually discharged all installments on the first mortgage as they had become due, and was maintaining the first mortgage in good standing notwithstanding plaintiff's suit; that at the commencement of suit he was in arrears on the second mortgage only to the extent of one $25 payment which he had offered to pay to plaintiff but plaintiff had refused to receive the same and reinstate the second mortgage.
On November 6, 1944, McLeod filed a supplemental petition again praying for a stay of proceedings. By the supplemental petition he alleged that since the filing of the original petition he had actually been inducted into the armed forces of the United States, had been duly sworn in as a member of said military forces, and was actually in active military service; and that by reason of continued maintenance of the first mortgage in good standing, and of reduction in his income since his entry into military service, he was unable to meet his obligations on the second mortgage.
By an amendment to the supplemental petition filed November 28, 1944, and sworn to by Virginia K. McLeod, the wife of the inductee, it is averred that before being called into military service McLeod had been receiving a monthly salary of $300 in civilian employment, as well as additional earnings over that sum from time to time, and that such income was found to be commensurate, but only reasonably so, for the suitable support of himself and family; that the maximum allotment which he was receiving for the support of his wife and three children since his induction into service was only $120 monthly, which amount was not sufficient with which to provide the necessities of life for his wife and children, discharge payments on the first mortgage, and meet the demands of the second mortgagee; that the wife is not trained in any other field except as housewife, and that if she were trained to do other work, the tender years of the three infant children of petitioner would preclude any attempt on her part to supplement the income; that the wife of petitioner has attempted to budget her items of expenditure and the running expenses of her household, and that when the monthly payments on the first mortgage are made, premiums on group insurance procured before entry of the petitioner into service are paid, certain monthly payments upon essential items of furniture are discharged, and the remainder of the allotment expended for necessary items of sustenance, nothing is left with which to meet second mortgage payments.
Thereafter, on December 14, 1944, the chancellor caused a hearing to be held before him, at which time he received testimony offered by the plaintiff concerning details of the mortgage transaction the manner in which payments on the property had been financed, the worth of the property, the state of repair of the property, and other kindred matters pertaining to the property, the loan, and the value of the security given. Testimony was also taken concerning a dispute involving a contemporaneous transaction for the sale of certain household furniture by the plaintiff to the defendants, but such testimony is not material to the issue at hand, for the dispute appears by the record to have been amicably settled. At the conclusion of the hearing the chancellor, at request of defendant's counsel, of which plaintiff had notice, set the matter for further hearing on December 31, 1944, at which time, so it was asserted by defendant's counsel, the defendant McLeod would be home on furlough to testify. Apparently this hearing was never held for no testimony appears to have ever been taken subsequent to the hearing held on December 14, 1944. On January 2, 1945, and without further notice, the chancellor entered an order finding that the petition for stay presented The terms upon which the foreclosure suit was stayed were that defendants be required to (1) pay and retire the first mortgage of the First Federal Savings and Loan Association at Lakeland,...
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