Dubbin v. Capital Nat. Bank of Miami, 41434
| Decision Date | 21 June 1972 |
| Docket Number | No. 41434,41434 |
| Citation | 264 So.2d 1 |
| Parties | Henry DUBBIN et al., Petitioners, v. CAPITAL NATIONAL BANK OF MIAMI, etc., Respondents. |
| Court | Florida Supreme Court |
Mallory H. Horton of Horton, Schwartz & Perse, and Dubbin, Schiff, Berkman & Dubbin, Miami, for petitioners.
Richard M. McIver, Miami, for respondents.
We have for review by petition for writ of certiorari a decision of the District Court of Appeal, Fourth District, affirming the trial court's final judgment of foreclosure in favor of Respondent, Capital National Bank of Miami. Dubbin v. Capital National Bank of Miami, Fla.App.1971, 250 So.2d 663. We have jurisdiction under Article V, Section 4(2) of the Florida Constitution, F.S.A. because that decision conflicts with this Court's decision in Trustees of Internal Improvement Fund v. Lobean, Fla.1961, 127 So.2d 98.
The instant litigation arose out of a series of transactions involving certain land in Okeechobee County, Florida. On April 5, 1962, Spindrift Apartments, Inc., by its executive officer, Henry J. Mellon, executed and delivered to First Federal Savings & Loan Association of Miami a mortgage on said property securing a note in excess of $69,000. The mortgage was recorded on April 17, 1962. The property was later conveyed to Nor Mel Investments, Inc. Mellon was also Nor Mel's president. On September 22, 1965 Nor Mel, by Mellon, conveyed the property to Bimini Run, Limited, by warranty deed containing no exceptions. The deed made no reference to the mortgage given First Federal Savings & Loan Association of Miami and was not made subject to it. Instead, the deed contained the warranty clause: 'And the said party of the first part does hereby fully warrant the title to said land, and will defend the same against the lawful claims of all persons whomsoever.' The same day Nor Mel and Bimini Run executed an agreement in which Nor Mel agreed to deliver to Bimini Run within thirty days 'a title insurance policy . . . guaranteeing unto . . . (Bimini Run) good and marketable title in and to the lots referred to in the Warranty Deed, free and clear of any liens or encumbrances and subject only to taxes for the year 1965, and together with any abstracts which Nor Mel Investments, Inc. may have.'
The warranty deed was recorded on September 24, 1965. Bimini Run apparently never received a title insurance policy. On March 17, 1966, First Federal Savings & Loan Association of Miami assigned to Nor Mel Investments the April 5, 1962 mortgage and note executed by Spindrift Apartments. On March 22, 1966, Nor Mel Investments, by Mellon, assigned the note and mortgage to Respondent. Both assignments were recorded on March 23, 1966.
Three years later Respondent initiated a foreclosure action against Petitioners as last known directors of, and trustees for Bimini Run, Limited, a dissolved Liberian corporation. Petitioners filed an answer and counterclaim. In their answer they admitted the existence of the note and mortgage and the assignment of the mortgage to Respondent. In the counterclaim they sought a decree quieting title to the property alleging:
'That by operation of law the lien of said mortgage was discharged at the moment the same was assigned by the First Federal Savings & Loan Association of Miami, Florida, to defendant's grantor, Nor Mel Investments, Inc. and the plaintiff, as assignee of the said mortgage from said Nor Mel Investments, Inc. is estopped from claiming or enforcing the lien of the said mortgage upon or against the property described in the warranty deed . . . and owned by the defendant.'
The trial court granted a final judgment of foreclosure, saying the equities were with Respondent. However, the trial court does not explain its conclusion. The District Court...
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United of Florida, Inc. v. Illini Federal Sav. and Loan Ass'n, s. 76--459
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