Furlong v. Leybourne, No. 61-173

CourtCourt of Appeal of Florida (US)
Writing for the CourtHENDRY
Citation138 So.2d 352
PartiesMartha Joe FURLONG, Sylvia Carnes and Sally Leybourne, Appellants, v. Charlotte LEYBOURNE, individually and as Executrix of the Estate of James G. Leybourne, Deceased, Appellee.
Decision Date01 March 1962
Docket NumberNo. 61-173

Page 352

138 So.2d 352
Martha Joe FURLONG, Sylvia Carnes and Sally Leybourne, Appellants,
v.
Charlotte LEYBOURNE, individually and as Executrix of the Estate of James G. Leybourne, Deceased, Appellee.
No. 61-173.
District Court of Appeal of Florida, Third District.
March 1, 1962.
Rehearing Denied March 19, 1962.

Page 353

Robert M. Brake, Coral Gables, for appellants.

Redfearn, Ferrell & Simon, Miami, for appellee.

Before HORTON, BARKDULL and HENDRY, JJ.

HENDRY, Judge.

This is an appeal to review an order of the lower court entered in a suit for a declaratory decree. Appellants, plaintiffs below, are the children of James G. Leybourne, deceased. Appellee is a widow of the deceased and the stepmother of the appellants. James G. Leybourne died October 1, 1958. His will provided that his entire estate be distributed to the appellee who was also named executrix. About one year prior to his death the deceased and the appellee, as husband and wife, joined in making a negotiable note to the Coral Gables Federal Savings & Loan Associaton, hereinafter referred to as Federal, in the amount of $27,500, and in executing a mortgage to the Federal to secure the same, encumbering the homestead property which was owned by the deceased. 1 The proceeds of the aforesaid loan were used to pay back income taxes of the deceased which accrued prior to his marriage to the appellee.

Appellants previously brought an action for a declaratory decree seeking to determine whether it was the obligation of their father's estate or the appellee, as the case may be, to pay the principal due under the nonpurchase money mortgage. The complaint therein was filed against the appellee individually and as executrix of the estate of the deceased and against the Federal as creditor-mortgagee of the homestead property. That complaint alleged that the unpaid portion of the note secured by the mortgage was in excess of $26,000; that the Federal failed to file a claim against the

Page 354

estate within the prescribed time; that appellants had timely filed a claim in their own behalf; that the appellee was demanding that the appellants pay the principal owing on the note for which the mortgage was security; and that as a result of the above, the appellants were entitled to have the rights of the parties determined relative to the obligations concerning the homestead property.

The orders in that declaratory action were adverse to the children and they appealed. This court in affirming 2 the lower court's orders stated:

'We affirm the action of the chancellor in dismissing the Federal [creditor-mortgagee] from the cause, which was the subject of the appeal in case No. 59-326. The Federal, as the holder of a note made by the deceased and his wife and secured by a mortgage on property owned by the deceased, was entitled, under the applicable law, to elect whether to file a cliam in the estate for the amount due under the mortgage debt, or to waive the filing of claim without loss of right to foreclose, and to look only to the security under the mortgage as a means of recovery. * * *'

'We also affirm the chancellor in case No. 59-379, on his ruling as made in the summary decree. The main question in case No. 59-379, as raised by appellants, was whether the doctrine of exoneration, by which devisees of real property encumbered by a nonpurchase money mortgage are entitled to have the lien on the mortgage discharged by payment from the personalty of the estate, was applicable as part of the law of Florida to require the executrix to pay the outstanding debt owed to the Federal.'

'It is clear that such doctrine could have no application in this case, because of the failure of the mortgagee to file a claim in the estate. * * *'

Appellants filed a petition for rehearing and alleged that the court completely overlooked their request to determine the liability of the appellee in her individual capacity as co-maker of the note and that they were entitled to have this request adjudicated, separate and apart from any liability of the appellee as executrix of the estate.

This court after consideration of the petition stated at page 802:

'The questions as to the effect of the widow's personal...

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18 practice notes
  • Kumar Corp. v. Nopal Lines, Ltd., No. 83-2317
    • United States
    • Court of Appeal of Florida (US)
    • January 15, 1985
    ...267 (1925); Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916); Price v. Scharps, 405 So.2d 1043 (Fla. 3d DCA 1981); Furlong v. Leybourne, 138 So.2d 352 (Fla. 3d DCA 1962); Ulery v. Asphalt Paving, Inc., 119 So.2d 432 (Fla. 1st DCA 1960). Since a subrogee is the real party in interest and may ......
  • Dade County School Bd. v. Radio Station WQBA, Nos. 95-0534
    • United States
    • Court of Appeal of Florida (US)
    • May 7, 1997
    ...been held to extend to anyone "paying any part of the debt of another provided the entire debt is paid," Furlong v. Leybourne, 138 So.2d 352 (Fla. 3d DCA 1962), providing that party is not a mere "volunteer," but has some right or interest of its own to protect. Boley v.......
  • Capital National Bank of Tampa v. Hutchinson, No. 29232.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 22, 1970
    ...as collateral for the Intercontinental debt. See, e.g., Fowler v. Lee, 106 Fla. 712, 143 So. 613, 614 (1932); Furlong v. Leybourne, 138 So.2d 352, 356 (Fla.Dist.Ct.App. 1962).1 Nor did the Bank submit any evidence that Miller was under an obligation to pay the Intercontinental Likewise, the......
  • Photomagic Industries, Inc. v. Broward Bank, Nos. 87-500
    • United States
    • Court of Appeal of Florida (US)
    • May 10, 1988
    ...Prudence Mutual Casualty Co. of Chicago, Ill., 193 So.2d 224 (Fla. 3d DCA 1966), aff'd, 202 So.2d 561 (Fla.1967); Furlong v. Leybourne, 138 So.2d 352, 356 n. 4 (Fla. 3d DCA 1962). In Florida the law is clear, a guarantor is allowed to pursue the primary debtor only when the guarantor is req......
  • Request a trial to view additional results
18 cases
  • Kumar Corp. v. Nopal Lines, Ltd., No. 83-2317
    • United States
    • Court of Appeal of Florida (US)
    • January 15, 1985
    ...267 (1925); Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916); Price v. Scharps, 405 So.2d 1043 (Fla. 3d DCA 1981); Furlong v. Leybourne, 138 So.2d 352 (Fla. 3d DCA 1962); Ulery v. Asphalt Paving, Inc., 119 So.2d 432 (Fla. 1st DCA 1960). Since a subrogee is the real party in interest and may ......
  • Dade County School Bd. v. Radio Station WQBA, Nos. 95-0534
    • United States
    • Court of Appeal of Florida (US)
    • May 7, 1997
    ...been held to extend to anyone "paying any part of the debt of another provided the entire debt is paid," Furlong v. Leybourne, 138 So.2d 352 (Fla. 3d DCA 1962), providing that party is not a mere "volunteer," but has some right or interest of its own to protect. Boley v.......
  • Capital National Bank of Tampa v. Hutchinson, No. 29232.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 22, 1970
    ...as collateral for the Intercontinental debt. See, e.g., Fowler v. Lee, 106 Fla. 712, 143 So. 613, 614 (1932); Furlong v. Leybourne, 138 So.2d 352, 356 (Fla.Dist.Ct.App. 1962).1 Nor did the Bank submit any evidence that Miller was under an obligation to pay the Intercontinental Likewise, the......
  • Photomagic Industries, Inc. v. Broward Bank, Nos. 87-500
    • United States
    • Court of Appeal of Florida (US)
    • May 10, 1988
    ...Prudence Mutual Casualty Co. of Chicago, Ill., 193 So.2d 224 (Fla. 3d DCA 1966), aff'd, 202 So.2d 561 (Fla.1967); Furlong v. Leybourne, 138 So.2d 352, 356 n. 4 (Fla. 3d DCA 1962). In Florida the law is clear, a guarantor is allowed to pursue the primary debtor only when the guarantor is req......
  • Request a trial to view additional results

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