Fortenberry v. Mandell, No. 71--726

CourtCourt of Appeal of Florida (US)
Writing for the CourtREED
Citation271 So.2d 170
Docket NumberNo. 71--726
Decision Date31 August 1972
PartiesC. R. FORTENBERRY et al., Appellants, v. Lester N. MANDELL et al., Appellees.

Page 170

271 So.2d 170
C. R. FORTENBERRY et al., Appellants,
v.
Lester N. MANDELL et al., Appellees.
No. 71--726.
District Court of Appeal of Florida, Fourth District.
Aug. 31, 1972.

Page 171

William E. Weller of Rose & Weller, Cocoa Beach, and Walter C. Shepard of Shepard, Shepard & Minot, Cocoa, for appellants.

John M. Robertson of Robertson & Williams, Orlando, for appellees.

REED, Chief Judge.

The issue on this appeal conecerns the elements of proof required of a plaintiff who is seeking to enforce the debt of another by legal subrogation.

This is an appeal from a final judgment of the Circuit Court for Orange County, Florida, in a case tried without a jury. On 26 November 1968 the plaintiffs filed an amended complaint which alleged that on 14 June 1963 the defendant Rockett Builders, Inc., executed a note and mortgage to American Federal Savings and Loan Association for $43,300.00. The other named defendants were alleged to have endorsed the note before it was delivered to American Federal. A copy of the mortgage is attached to the complaint. The plaintiffs joined in the execution of the mortgage, but did not assume the obligation to pay the note which it secured. Plaintiffs executed the mortgage solely for the purpose of imposing the mortgage lien on the plaintiffs' interest in the real property described in the mortgage. The complaint avers that the defendants defaulted on the note which the plaintiffs thereafter paid. The relief sought was a declaration that the plaintiffs were entitled to sue the defendants on the promissory note and a judgment thereon for the amount paid on the note, together with interest, costs, and attorneys fees.

The evidence and the factual stipulations of the parties indicate that the plaintiffs as owners of a tract of land in Brevard County, Florida, executed a ninety-nine year lease to the defendant Rockett Builders, Inc., on 15 November 1962. The lease term commenced 1 January 1963. The lease provided that any building or permanent improvement erected on the premises would immediately become the property of the lessors. The lease also provided that in the event the lessee desired to mortgage the leased property, the lessors, without assuming any liability for the repayment of the debt, would join in the execution of the mortgage. On 14 June 1963 the defendant Rockett Builders, Inc., executed a note to American Federal Savings and Loan Association in the amount of $53,300.00 payable in monthly installments. The note was endorsed by the other defendants as accommodation endorsers. The note was secured by a mortgage of even date executed by Rockett Builders, Inc., to American Federal Savings and Loan Association. The mortgage encumbered the real property subject to the ninety-nine year lease, and the...

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13 practice notes
  • In re Bill Heard Enterprises, Inc., Bankruptcy No. 08-83029-JAC11.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • February 5, 2010
    ...82, 432 S.W.2d 669, 674 (1968); Bonfiglio v. Hoey (In re Hoey), 364 B.R. 427, 432 (Bankr.S.D.Fla. 2005) (citing Fortenberry v. Mandell, 271 So.2d 170 (Fla. 4th DCA 1972)) ("Equitable subrogation arises by operation of law where one pays a debt owed by another under circumstances in whi......
  • Dade County School Bd. v. Radio Station WQBA, Nos. 95-0534
    • United States
    • Court of Appeal of Florida (US)
    • May 7, 1997
    ...but has some right or interest of its own to protect. Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916); Fortenberry v. Mandell, 271 So.2d 170 (Fla. 4th DCA 1972), cert. discharged, 290 So.2d 3 Applying these principles here, the sponsors settled with the injured spectators to protect their o......
  • In re Hoey, Bankruptcy No. 00-35503-BKC-SHF.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Florida
    • September 22, 2005
    ...under circumstances in which he is in equity entitled to the security held by the creditor whom he has paid. Fortenberry v. Mandell, 271 So.2d 170 (Fla. 4th DCA 1972). If the doctrine is applied, the one who has paid the debt is entitled to succeed to all the remedies which the creditor pos......
  • Photomagic Industries, Inc. v. Broward Bank, Nos. 87-500
    • United States
    • Court of Appeal of Florida (US)
    • May 10, 1988
    ...only when the guarantor is required to pay that debtor's obligation. See North v. Albee, 20 So.2d 682 (Fla.1945); Fortenberry v. Mandell, 271 So.2d 170 (Fla. 4th DCA 1972), cert. discharged, 290 So.2d 3 (Fla.1974); Allstate Life Ins. Co. v. Weldon, 213 So.2d 15 (Fla. 3d DCA 1968). While sec......
  • Request a trial to view additional results
13 cases
  • In re Bill Heard Enterprises, Inc., Bankruptcy No. 08-83029-JAC11.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • February 5, 2010
    ...82, 432 S.W.2d 669, 674 (1968); Bonfiglio v. Hoey (In re Hoey), 364 B.R. 427, 432 (Bankr.S.D.Fla. 2005) (citing Fortenberry v. Mandell, 271 So.2d 170 (Fla. 4th DCA 1972)) ("Equitable subrogation arises by operation of law where one pays a debt owed by another under circumstances in whi......
  • Dade County School Bd. v. Radio Station WQBA, Nos. 95-0534
    • United States
    • Court of Appeal of Florida (US)
    • May 7, 1997
    ...but has some right or interest of its own to protect. Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916); Fortenberry v. Mandell, 271 So.2d 170 (Fla. 4th DCA 1972), cert. discharged, 290 So.2d 3 Applying these principles here, the sponsors settled with the injured spectators to protect their o......
  • In re Hoey, Bankruptcy No. 00-35503-BKC-SHF.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Florida
    • September 22, 2005
    ...under circumstances in which he is in equity entitled to the security held by the creditor whom he has paid. Fortenberry v. Mandell, 271 So.2d 170 (Fla. 4th DCA 1972). If the doctrine is applied, the one who has paid the debt is entitled to succeed to all the remedies which the creditor pos......
  • Photomagic Industries, Inc. v. Broward Bank, Nos. 87-500
    • United States
    • Court of Appeal of Florida (US)
    • May 10, 1988
    ...only when the guarantor is required to pay that debtor's obligation. See North v. Albee, 20 So.2d 682 (Fla.1945); Fortenberry v. Mandell, 271 So.2d 170 (Fla. 4th DCA 1972), cert. discharged, 290 So.2d 3 (Fla.1974); Allstate Life Ins. Co. v. Weldon, 213 So.2d 15 (Fla. 3d DCA 1968). While sec......
  • Request a trial to view additional results

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