Commercial Bank of Ocala v. First Nat. Bank
| Decision Date | 06 May 1918 |
| Parties | COMMERCIAL BANK OF OCALA v. FIRST NAT. BANK OF GAINESVILLE. |
| Court | Florida Supreme Court |
On Rehearing, July 26, 1918.
Appeal from Circuit Court, Marion County; W. S. Bullock, Judge.
Bill in chancery to foreclose a mortgage by the Carson Naval Stores Company against Stuckey & Tiller Company, the Commercial Bank of Ocala, the First National Bank of Gainesville, and others with answer and cross-bill by the First National Bank of Gainesville to foreclose its mortgage, making the complainant in the original suit and all the defendants therein defendants in the cross-bill. From an interlocutory order overruling a demurrer to the cross-bill the Commercial Bank of Ocala appeals. Order affirmed.
Additional Syllabus by Editorial Staff
Syllabus by the Court
Where a court of equity takes jurisdiction of a cause for one purpose, it will proceed with the determination of all the matters properly presented.
COUNSEL H. M. Hampton and T. S. Trantham, both of Ocala for appellant.
Hampton & Hampton, of Gainesville, for appellee.
The Carson Naval Stores Company, a corporation, filed its bill in chancery in the circuit court of Marion county to foreclose a mortgage made to it upon certain land located in said county and upon certain other property therein described. The defendants in the suit were Stuckey & Tiller Company, a corporation, the maker of the mortgage; the Commercial Bank of Ocala, a corporation, to which bank a mortgage upon a portion of the same land, antedating the mortgage sought to be foreclosed, had been given; the First National Bank of Gainesville, a corporation, to which bank the latter mortgage, together with the note evidencing the indebtedness which it had been given to secure had, prior to the institution of the suit been duly assigned and transferred; M. G. Davis and T. S. Matthews, individually and as a copartnership under the firm name of Davis & Matthews who were the successors of the Southern Pine Lumber Company a corporation, bankrupt, to a contract between it and Stuckey & Tiller Company, under which certain timber was to be cut and removed from the land covered by both mortgages and the proceeds thereof, at a stated price, applied to the indebtedness due upon the mortgage made to the Ocala Bank.
The bill contained allegations showing that there was uncertainty about the amount due upon the senior mortgage, expressed a desire to redeem said mortgage, and offered to pay to the holder and owner thereof such amount as the court should find upon an accounting to be due thereon, and contains also a prayer that:
'The defendants Stuckey & Tiller Company, the Commercial Bank of Ocala, and the First National Bank of Gainesville, and Davis and Matthews be required to account to your orator for the sums paid on the mortgage indebtedness of Stuckey & Tiller Company to the said the Commercial Bank of Ocala, afterwards assigned to the First National Bank of Gainesville, Fla., and that an account be taken under the direction of this court of the amount due on said mortgage indebtedness to the said the Commercial Bank of Ocala, or the First National Bank of Gainesville, Fla.; that in the event it be found that no sum is due on said mortgage, the defendant the First National Bank of Gainesville, Fla., or any person claiming by, through, or under it, be required to cancel said mortgage of record, and in case of their failure so to do that the decree of this court stand as cancellation and satisfaction thereof; that, in the event any sum be found to be due by the Stuckey & Tiller Company on said mortgage indebtedness so given to the Commercial Bank of Ocala, your orator be permitted to pay such sums of money into the court, or the lawful owner of such mortgage indebtedness, and that the property described in your orator's mortgage be sold free of any lien thereon, by reason of the existence of such mortgage as made by the Commercial Bank of Ocala and assigned to the First National Bank of Gainesville, Fla.'
The defendant the First National Bank of Gainesville answered, averring, among other things, that it was the owner of the note and mortgage originally made by Stuckey & Tiller Company to the Commercial Bank of Ocala; that it purchased this note and mortgage, paying therefor the sum of $6,888.37, as shown upon the face of the assignment of the mortgage, and by a statement furnished by the Ocala Bank to this defendant. It denied that said indebtedness had been paid off, and averred that the amount of the balance due thereon is $5,886.76.
The Commercial Bank of Ocala answered, averring, among other things, that at the time of the assignment and transfer by it to the Gainesville Bank of the said note and mortgage there was due thereon the sum of $3,939.03, and that this sum is the amount paid to it by the Gainesville Bank for this note and mortgage. It denied that said indebtedness had been paid off at the time of said transfer, and averred that there was not at that time due thereon exceeding the amount received therefor.
At the time of filing its answer the Gainesville Bank also filed its cross-bill to foreclose its mortgage, making the complainant in the original suit and all the defendants therein defendants in the cross-bill.
In this cross-bill the various allegations of the original bill were set out, and the purchase, assignment to it, and ownership by it of the note and mortgage made to the Ocala Bank is alleged.
It is further alleged as follows:
'That at the time and date of the purchase of said indebtedness and of the said mortgage securing the same by your orator, the defendant the Commercial Bank of Ocala by its proper officers represented to this complainant that there was then due and owing by the defendant Stuckey & Tiller Company on the said note and mortgage then held by the Commercial Bank of Ocala, as aforesaid, the sum of $6,888.37; and the consideration named in the assignment of the mortgage was and is the true consideration paid by this complainant in cross-bill to the said the Commercial Bank of Ocala for the said note and mortgage. That this complainant having paid this amount of money in good faith to the Commercial Bank of Ocala for the said note and mortgage, it is entitled to collect the full amount thereof with interest thereon, in the enforcement of the said note and mortgage against the said Stuckey & Tiller Company and the other defendants in this suit whose interests are affected thereby. That if any other payments were made on the said note by the said Stuckey & Tiller Company, so that the note would be reduced below the amount paid by this complainant to the Commercial Bank of Ocala for the said note and mortgage, such payments were made without the knowledge of this complainant; and the said the Commercial Bank of Ocala, if it is shown that there were any payments made and not credited thereon, would be liable to this complainant for such amount or amounts as may be shown to have been paid and not properly credited thereon. That this complainant examined the note and the mortgage and made careful inquiry, and was assured by the officials of the Commercial Bank of Ocala that no payments had been made, and that there was then due and owing by the Stuckey & Tiller Company to the said the Commercial Bank of Ocala on the said note and mortgage the full sum of $6,888.37.
'IV. Your orator further showeth unto your honor that to further secure your orator in the payment of the said note and mortgage which were given by Stuckey & Tiller Company to the Commercial Bank of Ocala, and indorsed and assigned to your...
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