Dennis v. Ivey

• Decision Date: 06 October 1938
• Parties: DENNIS v. IVEY et al.
• Court: Florida Supreme Court

183 So. 624

134 Fla. 181

DENNIS v. IVEY et al.

Florida Supreme Court, Division B.

October 6, 1938

Bill in the nature of a bill of review by John L. Ivey against C. D Dennis and others to review, correct, and reverse a portion of a final decree reviving and restoring a mortgage indebtedness and making it a first lien on property, wherein the named defendant filed an answer and crossbill for affirmative relief. From a decree dismissing the bill and dismissing the affirmative portion of the amended answer, the named defendant appeals.

Affirmed. Appeal from Circuit Court, Highlands County; H C. Petteway, judge.

COUNSEL

W. H Nollman, of Sebring, and McKay, MacFarlane, Jackson & Ramsey and Hampton, Bull & Crom, all of Tampa, for appellant.

W. G Ramseur, of St. Petersburg, F. T. Haskins, of Sebring, and Treadwell & Treadwell, of Arcadia, for appellees.

OPINION

PER CURIAM.

The transcript here shows that Honorable W. T. Harrison, Judge pro hac vice, in and for Highlands County, Florida, on June 26, 1935, made and entered a final decree in the case of Ivey Properties, Inc., et al., complainants, versus Alma Levy et al., defendants; C. D. Dennis et al., cross-defendants, and E. S. Futch, intervener. On the 10th day of September, 1934, E. S. Futch died, and an order was entered substituting the executors of his will as parties to the suit. The bill of complaint filed by Ivey Properties, Inc., was dismissed by the terms of the final decree. The restraining order previously issued was dissolved. The special master was authorized to sell certain land described under a writ of execution in the case of C. D. Dennis v. J. L. Ivey, subject to a prior mortgage given by J. L. Ivey to E. S. Futch for the sum of $19,500. The mortgage had by the late E. S. Futch been cancelled of record but in a contest between or among the creditors of Ivey and Ivey Properties, Inc., by a term of the final decree the mortgage of the late E. S. Futch was revived and restored and made a lien prior in dignity to the said judgment creditors. Item 'G' of the decree is, viz: 'The court further finds that J. L. Ivey was duly served with process, is now before the court, but is in default.' An appeal was taken from the said final decree.

On October 24, 1935, John L. Ivey filed in the Circuit Court of Highlands County, Florida, a bill in the nature of a bill of review against C. D. Dennis, a judgment creditor, the executors of the will of the late E. S. Futch, and others. The prayer thereof was to review, correct and reverse that portion of the final decree dated June 26, 1935, reviving and restoring said mortgage indebtedness in the sum of $19,500 and making it a first lien on the Southeast Quarter of Section 31, Tp. 36 South, Range 30 East, less eleven acres. It was further contended that the late E. S. Futch gave false testimony and the decree rests or stands largely on his testimony. E. S. Futch died on September 10, 1934, and the suit making this serious charge was filed several months after his death.

On the 2nd day of December, 1935, the defendant filed an answer to the bill of review and cross bill of complaint praying for affirmative relief, viz.: (a) an accounting between J. L. Ivey and C. D. Dennis; (b) a conveyance of certain property by E. S. Futch and John L. Ivey to Ivey Properties, Inc., be decreed null and void and that the property therein described be held subject to the judgments and writs of execution of C. D. Dennis against J. L. Ivey; (c) that the Dennis judgments be decreed to be prior in dignity to that of the mortgage to the late E. S. Futch.

The cross complainant, C. D. Dennis, within the time allowed by Section 48 of the 1931 Chancery Act of Florida, Acts 1931, c. 14658, propounded 68 interrogatories to his judgment creditor, John L. Ivey, and on the 9th day of December, 1935, answers thereto were filed by him. The record fails to show that the lower court ever passed on the relevancy, materiality, or competency of the said testimony given by the judgment creditor in response to the propounded interrogatories. The executors of the E. S. Futch estate filed a motion to dismiss the bill in the nature of a bill of review because, among other assignments or grounds, there was no equity in the bill.

Likewise, a motion was filed by the executors to dismiss the cross bill filed by the cross complainant, C. D. Dennis. On October 19, 1935, the lower court entered an order sustaining the motion to dismiss and dismiss the bill in the nature of a bill of review. It was on November 10, 1936, amended, and on December 22, 1936, the answer thereto by C. D. Dennis, the defendant, was amended and simultaneously therewith the cross bill of complaint on the part of C. D. Dennis was amended. On the 29th day of March, 1937, the lower court sustained a motion to dismiss and did dismiss the bill of complaint in the nature of a bill of review as amended by the amendment. On the 27th day of March, 1937 the lower court sustained a motion to strike the affirmative portion of the amended answer of C. D. Dennis to the amended bill of complaint filed by John L. Ivey, and likewise dismissed the affirmative portion of the amended answer referred to as the cross complaint of C. D. Dennis. Each of these adverse rulings are assigned as error and a reversal thereof is sought in this court.

The decree sought to be reviewed, corrected or reversed is dated June 26, 1935, and the bill in the nature of a bill of review was filed by leave of the court on the 2nd day of December, 1935. The law appears to be well settled that a suit, like the one at bar, must be filed within the time limited by statute for taking an appeal from the decree sought to be reviewed, which by statute is fixed at six months. See Hall v. Hall, 93 Fla. 708, 112 So. 622; Reynolds v. F. C. P. Ry. Co., 42 Fla. 387, 28 So. 861; Zewadski v. Barksdale, 86 Fla. 552, 98 So. 590; Shrader v. Shrader, 36 Fla. 502, 18 So. 672; State v. White, 40 Fla. 297, 24 So. 160; Mattair v. Card, 19 Fla. 455; Rawlins v. Rawlins, 18 Fla. 345; Johnson v. Johnson, 182 Ala. 376, 62 So. 706.

It is clear that the case at bar falls within the rule, supra, and the parties here are within their rights. The record shows that John L. Ivey conveyed his interest in and to the property involved to the Ivey Properties, Inc., and had no further interest therein and no deficiency or other judgment was sought against him, and the lower court held for this reason he was not a necessary party. When mortgagors have conveyed all their rights and interests in and to the mortgaged property to other parties, such mortgagors are neither necessary nor proper parties to a suit to foreclose unless a deficiency decree is sought. See Hinson v. Gammom, 61 Fla. 641, 54 So. 374, Ann.Cas.1913A, 83; Phifer v. Abbott, 73 Fla. 402, 74 So. 488; Hubbard v. Highland Realty & Investment Co., 115 Fla. 834, 156 So. 322. John L. Ivey, the complainant in the bill in the nature of a bill of review now before us, was party defendant and the final decree dated June 26, 1935, sought to be reversed so recites.

It is alleged in the bill of review that had plaintiff (J. L. Ivey) been served with a copy of the E. S. Futch answer seeking affirmative relief he would have challenged the averments and if an opportunity had been presented he would have produced testimony to show that the mortgage from J. L. Ivey to E. S. Futch for the sum of $19,500 and recorded in Mortgage Book 16 at page 157, Records of Highlands County, Florida, had been paid and fully discharged by the plaintiff John L. Ivey to the said E. S. Futch and the same cancelled and satisfied of record by E. S. Futch shortly after the said payment, and that it was contrary to equity and good conscience to permit or allow the reinstatement of the said mortgage, or otherwise to be subrogated back to the lien of said mortgage. While a copy of the affirmative answer filed against the said John L. Ivey by E. S. Futch in the original suit was served upon one T. A. McNicholas, an attorney of Avon Park, Highlands, County, Florida, within the time prescribed by the 1931 Florida Chancery Act, it is alleged that the attorney was not authorized to represent John L. Ivey. It is further contended in the bill of review that John L. Ivey owns an equitable interest in the mortgaged premises and a moral and legal obligation rested upon him to see that his property was equitably divided among his said creditors. It appears that the Chancellor below accurately summarized the contendment of the cross complainant in the following language:

'Much has been said in the cross-complaint about the question of fraudulent conveyance and intent to defraud, but when it is all summed up, it amounts to simply setting out that John L. Ivey

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