Crown Corp. v. Robinson

• Decision Date: 20 May 1937
• Citation: 174 So. 737,128 Fla. 249
• Parties: CROWN CORPORATION v. ROBINSON et al.
• Court: Florida Supreme Court

174 So. 737

128 Fla. 249

CROWN CORPORATION v. ROBINSON et al.

Florida Supreme Court

May 20, 1937

Rehearing Denied June 16, 1937.

Action by R. E. Robinson against Crown Corporation and others. From the decree, defendant Crown Corporation appeals.

Affirmed. Appeal from Circuit Court, Palm Beach County C. E. Chillingworth, judge.

COUNSEL

J. W Salisbury, of West Palm Beach, for appellant.

Wideman Wardlaw & Caldwell and Manley P. Caldwell, all of West Palm Beach, for appellee.

OPINION

BUFORD Justice.

The appeal brings for review a final decree determining the priority of liens claimed by appellant and appellee in favor of appellee.

The appellant has stated five questions in brief filed on its behalf, which are as follows:

1. 'Where a promissory note is in the hands of a payee and the fund from which said note is payable is limited to 'My Ocean Frontage in Palm Beach, Florida,' can such clause incorporated in said note be explained by parol testimony of the parties to said note?'

2. 'Are the words 'To be paid out of the first moneys coming to me or due me out of the lands known as my Ocean Frontage in Palm Beach, Florida,' such words of limitation as to require testimony of the parties to designate what lands, if any, are covered by the terms of said promissory note?'

3. 'Where a mortgagee makes a loan on certain property, which had theretofore been covered by a lis pendens, which had been dismissed prior to the actual making of said loan, and where the decision of the lower court in dismissing said lis pendens is reversed by the superior court under a stipulation of the parties to said cause, does the reversal reinstate the lis pendens as of the date of its dismissal so that said mortgagee is charged with notice thereof?'

4. 'Is the stipulation, filed in this cause and entered into by the complainant R. E. Robinson and the defendant Bula E. Croker, binding on the defendant Crown Corporation insofar that said stipulation would create a lien on charge on the lands involved in this suit if prior thereto no such lien had been acquired by the Complainant, and the Defendant Crown Corporation acquired its rights subsequent to the execution of the original note but prior to the actual signing of the stipulation?'

5. 'Where an attorney enters into an agreement with a client that he will accept a contingent fee payable out of certain lands owned by the client in case the prosecution of a law suit is successful and prior to the termination of said law suit, on the outcome of which said contingent fee is based, the attorney induces his client to vary the terms of said contract by agreeing to pay said attorney a stipulated sum in cash, there being no consideration for said latter agreement, can the attorney ignore his first contract of employment and insist that the terms and conditions of the later agreement be enforced?'

The record shows that this suit was instituted in July, 1931, by R. E. Robinson, one of the appellees, for the purpose of foreclosing a lien claimed by him on account of a certain note payable to him and executed by Bula E. Croker, one of the appellees, which note contains, among other things, the following provision: 'To be paid out of the first moneys coming to me or due to me out of the lands known as my Ocean Frontage at Palm Beach, Florida, whether such moneys become due to me or my estate before or after the expiration of one year, herein fixed period, and this note shall be, and is, a charge upon all of said Ocean Frontage, or moneys coming to me or my estate from said Ocean Frontage.'

Lis pendens was filed in connection with the suit. The lis pendens was dismissed on August 4, 1931. Appeal was taken therefrom resulting in the reversal of the order of the chancellor. Robinson v. Croker, 117 Fla. 582, 158 So. 123. Mandate was issued January 2, 1934. The loan made by Crown Corporation to Bula E. Croker on some of the property involved in this suit was made October 5, 1931, subsequent to the order of dismissal of the lis pendens and while the appeal from that order was pending in the Supreme Court.

The bill of complaint was amended in March, 1932, by making the appellant Crown Corporation a party defendant on the theory that appellant took this mortgage from Mrs. Croker with notice and knowledge of the lien claimed by Robinson on the same property and prayed that the lien of appellee Robinson be adjudged to be prior and superior to the lien of Crown Corporation.

While the appeal from the order dismissing the lis pendens was pending, on the 6th day of February, 1933, the complainant and Mrs. Croker entered into a compromise agreement by the terms of which the claim of Robinson was reduced to $57,500, which the defendant Bula Croker agreed to pay on or before two years from date. In that agreement Mrs. Croker agreed to secure the payment thereof by Robinson holding his lien as set forth in the original note. This stipulation or agreement between Mrs. Croker and Mr. Robinson was without the knowledge of Crown Corporation and after the mortgage on tract B, as described in the bill of complaint, was executed by Mrs. Croker to Crown Corporation. In accordance with the compromise agreement, a decree was entered against the defendant Bula Croker and in favor of the complainant Robinson. In the decree it was specifically stated to be only in adjudication of their respective rights, and not in any way an attempt to construe priorities of other defendants.

The record shows that the notice of appeal from the order dismissing the lis pendens was entered on the day after the order was entered and, therefore, Crown Corporation took its mortgage subject to the lis pendens in the event that the order dismissing the lis pendens should be reversed by the Supreme Court. See Webb Furniture Co. v. Everett, 105 Fla. 292, 141 So. 115; Marshall & Spencer Co. v. Peoples' Bank of Jacksonville, 88 Fla. 190, 101 So. 358.

So, we hold that Crown Corporation was charged with constructive notice...