Fagan v. Robbins

• Decision Date: 26 June 1928
• Citation: 96 Fla. 91,117 So. 863
• Parties: FAGAN et al. v. ROBBINS.
• Court: Florida Supreme Court

117 So. 863

96 Fla. 91

FAGAN et al. v. ROBBINS.

Florida Supreme Court, Division B.

June 26, 1928

Suit by Myra F. Robbins, by E. Stanley Robbins, her husband and next friend, against William D. Fagan, Jr., and others. Decrees for complainant, and defendants appeal.

Reversed and remanded.

Strum and Brown, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Provision of law authorizing deficiency decrees in foreclosure suits held not mandatory (Acts 1919, c. 7839, § 2; Equity Rule 89). There are two good and sufficient reasons why we think that the word 'shall,' as used in section 2 of chapter 7839, Acts of 1919, merely confers authority to enter deficiency decrees and is not mandatory. One reason for this conclusion is that the apparent and logical purpose of the act was to provide a statute authorizing the court to enter deficiency decrees against all persons liable for a mortgage debt or liable for a lien debt, whether such liability should be primary or secondary and whether such liability was created by indorsement of the note or as joint maker of the note or grantor or otherwise. The other reason is that prior to the enactment of this statute deficiency decrees were entered in foreclosure suits under authority of Equity Rule No. 89, and this rule did not apply to other liens.

Deficiency decree was not authorized against indorser of note under equity rule (Equity Rule 89). Equity Rule No. 89 did not authorize the entry of a deficiency decree against an indorser of a note.

Court may enter deficiency decrees in foreclosure suits against obligors other than makers of mortgages (Acts 1919, c. 7839 § 2). Held, it was the purpose of the Legislature to extend the provisions of Rule No. 89, supra, to cover other liens beside mortgage liens, and that it was the purpose of the Legislature, in view of the language used in Realty Mortgage Co. v. Moore, 80 Fla. 2, 85 So. 155, and in Snall v. Richardson, 67 Fla. 386, 65 So. 592, to authorize the court to enter deficiency decrees against obligors other than the makers of the mortgage.

Deficiency decree in foreclosure suit is matter to be determined only by exercise of judicial discretion. This court has for all time settled the question that the granting or denying of a deficiency decree is a matter to be determined only by the exercise of judicial discretion and that such decree may be granted or denied according to the facts and circumstances in each case.

Law authorizing deficiency decrees when construed as directory and permissive statute held valid (Acts 1919, c. 7839, § 2). To hold the act as being mandatory would require us to determine that the Legislature has attempted to coerce the judicial action of the courts and that in so doing it has invaded the province of the courts and passed an invalid act. When construed as a directory and permissive statute, it may be held to be valid and to serve a good purpose, and we so hold.

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

COUNSEL

Morey Dunn and E. Harris Drew, both of West Palm Beach, for appellants.

R. M Griffin, of West Palm Beach, for appellee.

OPINION

BUFORD J.

The facts in this case have been stated as follows:

'The appellee, as complainant in the court below and referred to herein as the complainant, on March 13, 1926, filed her bill of complaint in the circuit court of Palm Beach county, Fla., on the chancery side of said court, against the appellants, William D. Fagan, Jr., Aurelia Fagan, his wife, and Horace B. Chase, II, and another, E. Wilson, herein referred to as the defendants, to foreclose a mortgage bearing date June 8, 1925, covering certain property in Palm Beach, Palm Beach county, and state of Florida, given by the said William D. Fagan, Jr., and Aurelia Fagan, his wife, to the said Horace B. Chase, II, for the purpose of securing the payment of three certain promissory notes in the sum of $8,000 each, dated June 8, 1925, and payable on or before one, two, and three years, respectively, after date, with interest from date at the rate of 8 per cent. per annum, said interest payable semiannually.

'It was alleged and shown by the said bill of complaint, among other things, that the said mortgage and notes had, on the 23d day of June, 1925, by an assignment in writing, been sold, assigned, transferred, and set over by the said Horace B. Chase, II, to the said Myra F. Robbins, the said assignment in writing having been placed of record in said county and state on October 13, 1925, and that on December 8, 1925, the semiannual interest on the said three promissory notes, amounting to the sum of $960, became due and payable to said complainant, and was not paid, and that by reason of such default and the lapse of more than 30 days since the said interest became due and payable, the said complainant had exercised the option given her in the said mortgage to declare the aggregate sum mentioned in the said promissory notes and the said mortgage as immediately due.

'In the course of the proceedings a general demurrer was filed by William D. Fagan, Jr., and Aurelia Fagan, his wife; also, a general demurrer was filed by Horace B. Chase, II, and E. Wilson. The demurrers were overruled by the court below at a hearing thereon on July 28, 1926.

'On August 16, 1926, a joint answer to the bill of complaint was filed by the defendants. The answer consisted of paragraphs 1, 2, and 3. In paragraph 1, the defendants, in substance, alleged that the note was not made payable at any place more definite than West Palm Beach, Fla., and that all of the money allowed by the bill of complaint to be due was, on the day same became due and payable, at the home and at the office of Horace B. Chase, II, and at the home and at the office of William D. Fagan, Jr.; that said money was kept at said safe places all during the day same became due and payable and for many days thereafter; that the said note was not presented for payment at any of said places or to either of said defendants on the day same became due and payable or at any time thereafter; that the defendants have been ready, able, and willing at all times since said amount became due to pay same, are now ready, able, and willing to make payments due and tender the amount into court with their answer to the bill of complaint. The record disclosed no profert in curia.

'Paragraph 2 stated that all of the allegations in the bill of complaint, not herein admitted, are specifically denied by these defendants.

'Paragraph 3 prayed that the complainant be required to accept the amount tendered in court; that the complainant not be allowed solicitor's fees and costs; and that said cause be dismissed.

'On November 17, 1926, the solicitors representing the defendants stipulated with the solicitor representing the complainant to waive the statute and rules of court relating to the filing of exceptions to answers in chancery and allowed the complainant 15 days within which to file exceptions to the answer of the defendants and motion to strike, and in said stipulation agreed that the time for the taking of testimony be enlarged for a period not exceeding 60 days after disposition of exceptions to answer and motion to strike answer.

'On November 27, 1926, the complainant filed exceptions to the answer of the defendant by which said exceptions the complainant sought to have expunded from the answer all of paragraphs 1 and 3 as scandalous and impertinent. At the time the said exceptions were filed, the complainant also filed a motion to strike portions of the said answer. The first part of said motion was addressed to paragraphs 1 and 3 of the answer on the grounds that said paragraphs are scandalous an impertinent, are not responsive to the bill, do not allege facts constituting a defense, that said paragraphs purport to set forth that there was no presentment or demand for payment, whereas the notes show on their face that demand and notice of nonpayment was expressly waived, etc., are not drawn conformable to sections 3118 to 3122 of Revised General Statutes, and fail to allege any matters which would be the basis of a set-off or counterclaim. The second part of said motion was addressed to paragraph 2 of the answer on the ground that it is merely a general denial of certain allegations of the bill not otherwise admitted by the answer and is not framed according to section 3118 of General Revised Statutes.

'On February 2, 1927, after timely notice, the court allowed the exceptions to the answer and granted the motion to strike portions of the answer, and made and entered a decree pro confesso against the defendants in said cause. The record discloses no timely motion or other effort to open the decree pro confesso.'

A master was appointed, testimony was taken and submitted to the court, final decree was entered, sale of the property was had, and after the sale it was found that the proceeds of the sale were not sufficient to pay the amount of the decree. Application was made for a deficiency decree, whch was granted against all the defendants.

From the several decrees, appeal was taken.

We find no reversible error as disclosed by the record, except that it appears from the record itself that the chancellor misconstrued the force and effect of chapter 7839, Acts of 1919, and was coerced by the provisions of that act as he saw and construed them to enter a decree which he would not in the exercise of his sound judicial discretion have entered. The learned chancellor has written in the decree the following language:

'And while the court is of the opinion that the entry of a deficiency decree for the full amount remaining unpaid is unconscionable and inequitable, yet by virtue of the 1919 act of the Legislature...