Gables Racing Ass'n v. Persky

• Decision Date: 23 October 1940
• Citation: 148 Fla. 627,6 So.2d 257
• Parties: GABLES RACING ASSOC., Inc., v. PERSKY.
• Court: Florida Supreme Court

6 So.2d 257

148 Fla. 627

GABLES RACING ASSOC., Inc., v. PERSKY.

Florida Supreme Court

October 23, 1940

On Rehearing En Banc May 16, 1941.

Rehearing Denied March 2, 1942.

Appeal from Circuit Court, Dade County; H. F. Atkinson judge.

S. P. Robineau, Carl L. Brown, and Garland M. Budd, Jr. all of Miami, for appellant.

Evans Mershon & Sawyer, M. L. Mershon, and W. O. Methrtens, all of Miami, for appellee.

PER CURIAM.

On May 3, 1932 Robert Persky filed a bill of complaint in the Circuit Court of Dade County, Florida, to enforce a mortgage lien against the Gables Racing Assoc., Inc. The mortgage was dated July 20, 1931, and given to secure the payment of a promissory note in the sum of $15,000, payable to Nator Holding Company, and the note fell due on or before May 1, 1932. The mortgage covered approximately twenty-five acts of land located in Dade County, Florida. On June 19, 1931, the Nator Holding Company was indebted to Simon Persky in the sum of $19,900 and executed its promissory note as evidence thereof and the same was payable to Simon Persky and became due on or before May 1, 1932. To secure the payment of the said indebtedness in the sum of $19,900 due to Simon Persky the Nator Holding Company assigned to him the Gebles Racing Assoc., Inc., note and mortgage to the Nator Holding Company.

The note in the sum of $19,900 from the Nator Holding Company to Simon Persky was transferred by endorsement to Rebert Persky, together with the note and mortgage given by Gables Racing Assoc., Inc., to Nator Holding Company to sucure its indebtedness to Simon Persky, and each of said instruments was transferred or endorsed to Robert Persky before maturity.

The bill to enforce the mortgage lien filed under date of May 3, 1932, by Robert Persky was by an order of the court amended. The Gables Racing Assoc., Inc., and the Nator Holding Company filed separate motions to dismiss the amended bill of complaint and thereby challenged the sufficiency of the amended bill as to the ownership by Robert Persky of the Gables Racing Assoc. note and mortgage and his right to maintain foreclosure proceedings. There was a motion to require the Gables Racing Assoc. to produce certain books and papers, and from an order overruling and denying the motion to dismiss the amended bill and the order requiring the Gables Racing Assoc. to produce certain books and papers alleged to be material to the litigation, an appeal was taken to this court, and the order entered by the lower court overruling the motion to dismiss the amended bill of complaint was affirmed and the order requiring the Gables Racing Assoc. to produce certain books and papers was modified. See Gables Racing Ass'n, Inc. v. Persky et al., 116 Fla. 77, 156 So. 392.

The Gables Racing Assoc., after the return of the mandate to the Circuit Court of Dade County, filed its answer to the amended bill of complaint in which it denied that the mortgage from the Gables Racing Assoc. to the Nator Holding Company, and transferred and endorsed to Robert Persky, was executed by the Gables Racing Assoc., and denied that the said alleged mortgage was an obligation of the association or a lien upon the property described in the mortgage, but admitted that the Gables Racing Assoc., at the time of the filing of the answer, was in possession of the real estate described in the mortgage.

Testimony on the issues made by the pleadings was taken before the chancellor and a number of exhibits were offered in evidence by plaintiff below, and many of the exhibits and much of the testimony were admitted for the purpose of the record, and the court reserved its ruling thereon, subject to a motion to strike. Later the motion to strike certain of plaintiff's testimony and exhibits was by the lower court overruled and extended argument on final hearing was had.

On June 5, 1936, the chancellor entered an order permitting or allowing the plaintiff below to amend the bill of complaint to conform to said proof, and in the same order the motion to strike certain testimony and exhibits of the plaintiff was denied. From the order denying the motion to strike the testimony and exhibits and allowing the filing of the amended bill to conform to proof and the order overruling the motion to dismiss, a second appeal was perfected to this court. The order entered by the lower court: (a) denying the motion to dismiss; (b) denying the motion to strike testimony and exhibits of plaintiff; and (c) allowing the filing of the amended bill so as to conform to the proof, was affirmed by this court. See Gables Racing Ass'n, Inc. v. Persky, 131 Fla. 842, 180 So. 24.

The Gables Racing Assoc., Inc., after the return of the mandate on the second appeal, filed its answer to the re-amended bill raising in part issues viz: (1) the note and mortgage sought to be foreclosed as the obligations of Gables Racing Assoc., Inc., were not its instruments but were forgeries; (2) that Samuel Kantor was not the president, or Rose Kantor, his wife, the secretary, or officer or agents of Gables Racing Assoc., Inc., and were without authority to bind the association or mortgage its real estate; (3) that Simon Persky and Samuel Kantor were joint adventures; (4) that Samuel Kantor and Emmett Choate were joint adventures; (5) that the money advanced by Persky was to Samuel Kantor, personally, and not to Gables Racing Assoc., Inc.,; (6) that Simon Persky never owned a lien against the real estate of Gables Racing Assoc., Inc., either as a conventional instrument or evidence of an equitable lien; (7) if Simon Persky was the owner of an equitable lien, the same was lost and is not now enforceable because they failed to assert their claim or record their lien or advise innocent parties then expending money upon the appearance and status of the record of Dade County, Florida.

The case came on to be heard on final hearing on the testimony previously taken and exhibits offered by the plaintiff before the chancellor and the re-amended bill of complaint to conform thereto, and the testimony of the defendant and exhibits in support of its answer to the re-amended bill. The chancellor below found the equities to be with the plaintiff and decreed that the plaintiff's note and mortgage were valid and enforceable as an equitable lien against the interests of the Gables Racing Assoc., Inc., in the race track property described in the mortgage; and further decreed that the property be sold to satisfy the unpaid principal, interest, attorneys' fees, and court costs, and from the final decree the case makes its appearance here for the third time.

The assignments of error argued on this appeal are based on the different provisions of the final decree and the order dated May 25, 1939, overruling the petition of Gables Racing Assoc., Inc., for a rehearing. In the second appeal this court upheld the ruling of the lower court in permitting and allowing amendments to the amended bill containing a prayer to the effect that if a court shall find that the note and mortgage are unenforceable as formal, conventional instruments, that the court may decree that Robert Persky have an equitable mortgage lien upon the real property described in said note and mortgage.

The court, in Gables Racing Ass'n, Inc. v. Persky, supra, 131 Fla. text pages 846, 847, 180 So. text page 26, said:

'The re-amended bill is rather verbose and contains matters that are not altogether necessary, but it does not appear that the chancellor erred in holding that 'and the court finds that the allegations of said proposed amendment to plaintiff's bill conform substantially to the proof heretofore submitted to the court herein, and that the plaintiff's said amendment to his amended bill should be permitted to be filed, to conform to the evidence taken before the court and the exhibits filed herein, in order to do justice between the parties and to avoid unnecessary litigation and in order that the entire matter may be disposed of in this suit,' etc. But changing the bill so that the court might enforce it as an equitable mortgage or lien and a prayer to that effect is not a new and different cause of action, and the chancellor correctly allowed such an amendment in view of the fact that he allowed further pleadings on the part of the defendant.

'The court has examined the exhibits and testimony objected to by defendant in his motion to strike. We are inclined to agree with the chancellor below in saying, 'the plaintiff's testimony and exhibits are not wholly immaterial or irrelevant to plaintiff's bill and said amendments thereto.' * * *

'Some of the grounds of the motion to dismiss raise close and difficult questions, but it does not clearly appear that the chancellor's rulings were erroneous. We find therefore that the chancellor should be affirmed in his ruling on these two motions, and it is so ordered. Remanded for further proceedings not inconsistent with this holding.'

The amended bill of complaint to conform to the testimony and exhibits offered by the plaintiff was fully approved by this court in the case supra. On April 12, 1935, the Gables Racing Assoc., Inc., at the close of the taking of testimony in chief by the plaintiff below, filed a motion consisting of approximately 20 pages and containing 43 separate grounds, and said grounds possessed a number of subdivisions, and the motion was for the purpose of striking described testimony and exhibits offered by the plaintiff. It appears that the motion was directed to and applied to practically, if not all, of the testimony and exhibits offered in chief by the plaintiff. This motion was overruled and denied by the lower court and on appeal here was affirmed. See Gables Racing Ass'n, Inc. v. Persky, 131 Fla. 842, 180 So. 24. It is...