Franklin Savings & Loan Co. v. Fisk

• Citation: 124 So. 42,98 Fla. 683
• Court: United States State Supreme Court of Florida
• Decision Date: 17 October 1929
• Parties: FRANKLIN SAVINGS & LOAN CO. v. FISK et al.

124 So. 42

98 Fla. 683

FRANKLIN SAVINGS & LOAN CO. v. FISK et al.

Florida Supreme Court, Division A.

October 17, 1929

Suit by the Franklin Savings & Loan Company against Roy D. Fisk and others. From a decree of foreclosure decreeing that mechanic's lien should be accorded priority over complainant's mortgage, complainant appeals.

Reversed and remanded.

Syllabus by the Court

SYLLABUS

Installment mortgage securing building loan payable in installments recorded prior to mechanic's lien was entitled to priority, although final installment was paid after lienholder had completed work. Where mortgage securing building loan payable as building progressed was executed on March 17, 1926, and was recorded on March 23, 1926, and laborer commenced furnishing labor and materials to mortgagor on June 15, 1926, and completed his work on September 24 1926, and filed notice of lien for record on November 20 1926, held, that mortgage was entitled to priority over mechanic's lien, although mortgagee paid final installment of mortgage after lienholder had completed his work, as installment mortgage takes priority as lien from date of its record and not from date of disbursements by mortgagee for full amount of indebtedness.

Attorney's fees are not allowable in enforcing mechanic's liens. Attorney's fees are not allowable in action to enforce mechanic's liens.

Appeal from Circuit Court, Pinellas County; O. L Dayton, judge.

COUNSEL

Cook & Harris, of St. Petersburg, for appellant.

OPINION

BROWN J.

This appeal is from a decree for foreclosure. The bill was filed by the Franklin Savings & Loan Company for the foreclosure of a mortgage given to it by Roy D. Fisk and wife to secure a note for $6,000. Besides the mortgagors, several other parties were made defendants. One of these was Wm. S. Harris, who it was alleged claimed a mechanic's lien subordinate to complainant's first mortgage lien, and another was the Ninth Street Bank & Trust Company, who held a junior mortgage. These two defendants filed answers. Decrees pro confesso were entered against the other defendants. In his answer, defendant Harris alleged that his claim for labor and materials had priority over complainant's mortgage, and the junior mortgage as well. In its final decree of foreclosure the court below upheld this claim of priority as made by Harris, and complainant appealed, claiming by its assignment of error that the chancellor erred in decreeing that Harris's lien should be accorded priority over complainant's mortgage, and also in allowing attorney's fees to Harris.

The mortgage which complainant sought to foreclose was executed to it by Fisk and wife on March 17, 1926, and was recorded on March 23, 1926, and was given to secure a note for $6,000 payable about five years later, interest at 8 per cent. payable semiannually. Harris, as shown by the evidence, commenced the furnishing of labor and material to Fisk on June 15, 1926, and completed his work September 24, 1926, and filed his notice of lien for record on November 20, 1926.

The evidence showed that the complainant's note and mortgage were taken to secure what is commonly termed a building loan. Though the mortgage and note were in the usual form, it was understood between the parties at the time of its execution that the $6,000 was to be paid over by the mortgagee to the mortgagors in installments. The evidence showed that the plans and specifications for the prospective dwelling were submitted by the mortgagors to the mortgagee before the loan was made, and it was understood and agreed between the parties at the time that a certain proportion of the $6,000 was to be paid over to the mortgagors when the foundation was laid, another when the house was under roof, another...