Coombes v. Wheeler

• Decision Date: 02 March 1938
• Citation: 179 So. 785,131 Fla. 593
• Parties: COOMBES et al. v. WHEELER et al.
• Court: Florida Supreme Court

179 So. 785

131 Fla. 593

COOMBES et al. v. WHEELER et al.

Florida Supreme Court, Division B.

March 2, 1938

Rehearing Denied March 30, 1938.

Suit to foreclose tax sale certificates by F. D. Wheeler against the Fluvia Corporation, L. H. Coombes, as successor trustee, and others. From the final decree foreclosing the liens, the order confirming special master's sale, and order directing payment of surplus arising from the sale defendants appeal.

Affirmed. Appeal from Circuit Court, Dade County; Paul D Barns, Judge.

COUNSEL

Benjamin E. Carey, of Miami, for appellants.

Leland Hyzer, Herbert S. Sawyer, Thomas McE. Johnston, and Evans Mershon & Sawyer, all of Miami, for appellees.

OPINION

BROWN Justice.

This is an appeal from the final decree foreclosing the lien of certain tax sale certificates, the order confirming the special master's sale, and the order directing payment of the surplus money arising from the sale.

F. D. Wheeler brought his bill of complaint against the Fluvia Corporation, as record owner of the fee-simple title to the property involved in this litigation, Emily Franzen, as holder of a first mortgage thereon, Albert H. Lybyer, as holder of a second mortgage thereon, L. H. Coombes, as successor trustee to the City Trust Company, as holder of a mortgage thereon, James P. Franzen, as holder of two tax sale certificates of the city of Coral Gables thereon for the year 1931, and others, seeking to foreclose the lien of certain tax sale certificates held and owned by complainant, on two lots in Coral Gables, Fla.

Omitting a full preliminary statement of the pleadings and facts of the case, we will proceed at once to a consideration of the controlling questions involved, and the pertinent facts relating to each will be referred to in the course of their discussion.

It is contended, in the first question presented, that the final decree was so inconsistent, repugnant, and misleading that a fair sale of the property could not be had thereunder, in that it provided in one part that the property be sold at public auction to the highest and best bidder for cash, while in another part it provided that upon confirmation of the sale the purchaser should make payment of the amount of the bid in cash to the special master.

The two provisions of the final decree which are said to be inconsistent, repugnant, and misleading are:

'That unless there is forthwith paid to the plaintiff or his solicitors of record the aggregate sum of Two Hundred Fifty-four Dollars and Sixty-one Cents ($254.61), together with all costs of this proceeding to be taxed by the Clerk of this Court, that the real property described in the bill * * * be sold at public auction to the highest and best bidder for cash at the south door of the County Court House, Miami, Florida, upon a legal sales day during the legal hours of sale, and that said lots do be offered separately for the respective amounts herein adjudged to constitute a lien upon each.'

And: 'And upon confirmation of such sale the purchaser shall make payment in cash to the said Master of the amount bid at the sale.'

Construing these two provisions of the final decree together as a single and complete thought, it will be seen that there is not necessarily any conflict between them. The first part of the final decree complained of, requiring that the property be sold at public auction at a certain time and place, did not require that the cash accompany the bid, but simply decreed that the amount of the bid must be paid in cash as distinguished from other modes of payment, such as by promissory notes, mortgages, bonds, and the like. The second part of the final decree complained of, requiring that upon confirmation of the sale of the property the purchaser must pay the amount of the bid in cash to the special master, is not inconsistent with the first provision of the final decree complained of, but is merely explanatory fo the time when the payment in cash is to be made. These two provisions might properly have been embodied in the same paragraph of the final decree, and in such case they would have been considered as being in harmony with each other. There is no difference then in their effect because they are in separate parts of the final decree.

'The court has power to fix the terms of the sale. The ordinary fixing of terms is discretionary and will not be disturbed unless there is clear abuse of discretion.' 1 Wiltsie on Mortgage Foreclosure, 4th Ed., 839, § 655.

See, also, Flagler Finance Corporation v. Therrell, 118 Fla. 596, 159 So. 868.

Not only does the court have the power to fix the terms of sale, but it also has the duty to fix, in the foreclosure decree, the terms and conditions upon which the mortgaged premises are to be sold. See 45 C.J. 150, § 1751.

The court was acting within its proper sphere in ordering that the property by sold for cash to the highest and best bidder, to be paid upon confirmation of the sale. No abuse of discretion is made to appear in the matter.

In addition, the only party who could have been injured by these provisions of the final decree is Kent Corporation, the next highest bidder at the sale of the property, and whose bid, according to the affidavit of its treasurer, was ready to be paid at the time of making the bid. Kent Corporation is not a party to this appeal and consequently it cannot raise this question. The rights of the appellant L. H. Coombes, as successor trustee, who is complaining of this phase of the final decree, have not been adversely affected thereby, because the bid for the property made and accepted was $500 more than the next highest bid made by Kent Corporation, which is $500 more to be distributed to the rightful claimant or claimants, whoever he or they may be. Appellant cannot be heard to complain of any error here.

It is contended, in the second question presented, that the court erred in confirming the sale of the property, because the sale was made under a final decree and notice of sale that the property would be sold for cash, whereas it appears from the special master's report of the sale that the successful bidder has not paid his bid to the special master, and the next highest bidder is ready, able, and willing to comply with its bid by paying cash to said special master.

Even if appellant had a right to raise this question, which clearly he has not, because he has not been injured by the ruling of the court in this matter, the answer would be that the court below did not err in confirming the sale. The final decree provided that the property was to be sold to the highest and best bidder for cash, to be paid upon confirmation of the sale. The notice of sale stated that the property would be sold for cash, but did not state when the cash must be paid. The property was sold to James P. Franzen, the highest bidder therefor, for $3,500, and the sale was confirmed before the amount of the bid had been paid. We think the court correctly confirmed the sale of the property under these conditions.

It...