Dundee Naval Stores Co. v. Mcdowell

• Decision Date: 28 January 1913
• Parties: DUNDEE NAVAL STORES CO. v. McDOWELL.
• Court: Florida Supreme Court

61 So. 108

65 Fla. 15

DUNDEE NAVAL STORES CO. v. McDOWELL.

Florida Supreme Court

January 28, 1913

Appeal from Circuit Court, Madison County; Ira J. Carter, Judge.

Suit in chancerey by M. A. McDowell against the Dundee Naval Stores Company. From a decree for complainant, and an order directing defendant to surrender possession during the life of a leasehold interest, defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

The rights of persons who have an interest in the subject-matter of the litigation, whether legal or equitable, cannot be adjudicated or affected by a decree rendered in a suit to which they were not made parties.

Any one who has an interest in land that is mortgaged, and would be a loser by a foreclosure, is entitled to pay off the mortgage lien. The holder of a duly recorded lease for turpentine purposes may do so.

Where different persons have rights or interests in specific land the foreclosure of a mortgage upon the land affects the rights and interests of only such persons as are made parties actually or constructively to the foreclosure proceeding. An owner of the title may be cut off by foreclosure against him but one having a duly recorded lease upon the land, but not made a party to the foreclosure proceeding, is not affected thereby.

COUNSEL

T. L. Clarke and S.D. Clarke, both of Monticello for appellant.

Davis & Whitnell, of Madison, for appellee.

OPINION

Statement by Shackleford, C.J.

On the 1st day of April, 1912, the appellee filed his petition in chancery, which, omitting the formal parts thereof and the exhibits referred to therein and made a part thereof, and attached thereto, is as follows:

'The petition of M. A. McDowell, of the county of Madison and state of Florida, would respecfully show unto Hon. Ira J. Carter, judge of the circuit court, Third judicial circuit in and for Madison county, Fla.: That on the 23d day of June, A. D. 1908, W. B. Jenkins and his wife, Emma E. Jenkins, of the county of Madison and state of Florida, made, executed, acknowledged, and delivered to one C. L. Leggett their certain note for $500 secured by mortgage on the following described property, to wit: The N.E. 1/4 and the S.E. 1/4 of the N.W. 1/4 and the N.W. 1/4 of the S.E. 1/4 of section 2; the N. E. 1/4 of the N.E. 1/4 and the S.W. 1/4 of the N.E. 1/4 of section 4; the E. 1/2 of the N.E. 1/4 and the N.E. 1/4 of the S.E. 1/4 of section 12; the N.W. 1/4 of the S.W. 1/4 and the S.E. 1/4 of the S.W. 1/4 of section 14, all in township 1 N., of range 6 E., and situate, lying, and being in the county of Madison and state of Florida. That on the 17th day of March, 1909, the said W. B. Jenkins and his wife, Emma E. Jenkins, made their certain note to the said C. L. Leggett for the sum of $200 secured by a mortgage on the following described real estate, to wit: The S.E. 1/4 of the N.E. 1/4 of section 14, and the N.E. 1/4 of the N.E. 1/4 and the N.E. 1/4 of the N.W. 1/4 of section 13, the N.E. 1/4 of the N.E. 1/4, and the S.W. 1/4 of the N.E. 1/4 of section 4; the N.E. 1/4, and the N.W. 1/4 of the S.E. 1/4, and the S.E. 1/4 of the N.W. 1/4 of section 2; the E. 1/2 of the E. 1/2, the S.W. 1/4 of the S.E. 1/4, the S. 1/2 of the S.W. 1/4, and the N.W. 1/4 of the S.W. 1/4 of section 12, the N. 1/2 of the N.E. 1/4, and the S.W. 1/4 of the N.E. 1/4 and the N.E. 1/4 of the N.W. 1/4, N.W. 1/4 of the S.W. 1/4, and the S.E. 1/4 of the S.W. 1/4 of section 14; the S.E. 1/4 of the N.W. 1/4 of section 10, all in township 1 N., range 6 E.; also the S. 1/2 of the N. E. 1/4, the S.E. 1/4 of the N.W. 1/4, the E. 1/2 of the S.E. 1/4, and the S.W. 1/4 of the S.E. 1/4 of section 34, township 2 N., range 6 E., all of said lands being in the county of Madison and state of Florida. That said mortgage was duly executed, acknowledged, and delivered to the said C. L. Leggett. That the mortgage first above herein referred to was on the 24th day of June, A. D. 1908, duly filed and recorded in the public records of Madison county, Fla., in Book 20, on page 195, and the other of said mortgages was on the 18th day of January, A. D. 1910, duly filed and recorded in the public records of Madison county, Fla. in Book 21, on page 480. That subsequent to the execution, delivery, and recording of said two mortgages as aforesaid W. B. Jenkins made, executed, and delivered to Boyd & Gibbons a paper purporting to be a turpentine lease upon the timber upon the following described lands in Madison county, Fla., to wit: The N.E. 1/4, the N.W. 1/4 of the S.E. 1/4 and the S.E. 1/4 of the N.W. 1/4 of section 2, the E. 1/2 of the E. 1/2, the S.W. 1/4 of the S.E. 1/4, the S. 1/2 of the S.W. 1/4 and the N.W. 1/4 of the S.W. 1/4 of section 12; the N. 1/2 of the N.E. 1/4, the S.W. 1/4 of the N.W. 1/4, the N.E. 1/4 of the N.W. 1/4, N.W. 1/4 of the S.W. 1/4 and S.E. 1/4 of S.W. 1/4 of section 14, and the S.E. 1/4 of the N.W. 1/4 of section 10, all in township 1 N., range 6 E., said lease being dated the 24th day of September, A. D. 1910, a certified copy of same being hereto attached, marked 'Exhibit A,' and made a part of this petition. That on the 10th day of August, A. D. 1911, the said Boyd & Gibbons set over, transferred, and assigned all of their right, title, and interest in said lease to the Dundee Naval Stores Company, a corporation, a certified copy of which is hereto attached marked 'Exhibit C,' and made a part hereof.

'Your petitioner would further show: That on the 11th day of November, A. D. 1911, the said C. L. Leggett filed in the office of the clerk of the circuit court in and for Madison county, Fla., his bill of complaint against the said W. B. Jenkins and his wife, Emma E. Jenkins, for the foreclosure of said two mortgages. That on the 19th day of January, A. D. 1912, the said court made and entered its final decree in said cause, adjudging that said mortgages be foreclosed, and ordering R. H. Rowe as special master to make sale of the property as set out in said mortgages and said decree as directed by the court. That on the 12th day of March, A. D. 1912, the said R. H. Rowe, as special master, pursuant to the terms of said decree, filed his report in said court, wherein he reported the sale of said property pursuant to the terms of said decree to your petitioner for the sum of $1,578. That on the said 12th day of March, A. D. 1912, the said court made and entered its decree wherein said report of said special master was 'in all respects confirmed and approved,' all of which proceedings will more fully appear in the files of said cause, reference thereto being prayed.

'Your petitioner would further show that on the 13th day of March, A. D. 1912, pursuant to the terms of said decrees, the said special master made, executed, and delivered to your petitioner his deed conveying said lands embraced in said mortgages to your petitioner, as will more fully appear from a certified copy of said deed which is hereto attached marked 'Exhibit D,' and made a part of this petition.

'Your petitioner would further show: That subsequent to the institution of said suit for the foreclosure of said mortgages, to wit, November 29, 1911, the said C. L. Leggett by and through his solicitors of record filed in said cause his notice of lis pendens, which was by the clerk of said court duly recorded in the lis pendens docket No. 1, p. 57, all of which will fully appear in the files of said cause, reference thereto being prayed. That subsequent to the filing of said notice of the pendency of said suits as aforesaid the said Dundee Naval Stores Company entered upon said lands, and by its divers then agents and servants began to box or cup and work for turpentine purposes the timber on such of said lands as are embraced in both the deed from R. H. Rowe as special master to your petitioner and the alleged lease from W. B. Jenkins to said Boyd & Gibbons, and have since continued to work the same for turpentine purposes. That subsequent to the delivery of said deed from R. H. Rowe as special master to your petitioner, to wit on the --- day of March, A. D. 1912, your petitioner exhibited his said deed to one E. H. Smith, the general manager of said Dundee Naval Stores Company, and demanded possession of the property embraced in his said deed which the said Dundee Naval Stores Company was working for turpentine purposes, and demanded that said Dundee Naval Stores Company cease cultivating the trees thereon for turpentine purposes, but the said Dundee Naval Stores Company refused, and still refuses, to stop working said timber, although they claim the right to work the same under and by virtue of the said lease from the said W. B. Jenkins to the said Boyd & Gibbons; that on the 27th day of March, A. D. 1912, your petitioner delivered to one E. H. Smith, the agent and treasurer of the Dundee Naval Stores Company, a notice that he would on the 1st day of April, A. D. 1912, apply to your honor for an order directing the said Dundee Naval Stores Company to deliver possession of such of said lands embraced in the deed to your petitioner as aforesaid as are now in the possession of the said Dundee Naval Stores Company, a copy of said notice being hereto attached, marked 'Exhibit E,' and made a part of this petition.

'Your petitioner would therefore pray that your honor make on order directing the said Dundee Naval Stores Company to deliver to your petitioner the possession of such lands embraced in the deed from R. H. Rowe, special master, to your petitioner, the timber upon which they are now working for turpentine purposes, and your petitioner will ever pray,' etc.

The petition was duly sworn to by the appellee, and upon the presentation of the same to the circuit judge, on the day that the petition was filed, he made an order, directing the...