H.K.L. Realty Corp. v. Kirtley

• Decision Date: 05 October 1954
• Citation: 74 So.2d 876
• Parties: H. K. L. REALTY CORPORATION et al., Apppellants, v. James D. KIRTLEY and Susan Kirtley, Appellees.
• Court: Florida Supreme Court

Page 876

74 So.2d 876

H. K. L. REALTY CORPORATION et al., Apppellants, v. James D. KIRTLEY and Susan Kirtley, Appellees.

Supreme Court of Florida, Division A.

Oct. 5, 1954.

Edwin D. Taylor and J. R. Bates, Miami, for appellants.

R. E. Kunkel, Miami, for appellees.

SEBRING, Justice.

This is an appeal from a final decree in favor of the plaintiff in a mortgage foreclosure suit. The notes and mortgage involved were made in 1925. The notes were payable one, two and three years after date, respectively. The mortgagors defaulted in the payment of the debt secured. The notes and mortgage were assigned to the plaintiffs' preducessors in title on July 7, 1926. Thereafter, on November 8, 1951, the notes and mortgage were assigned to the plaintiffs, who, in 1952, instituted the present suit to foreclose the mortgage claiming principal, interest and taxes as proper items of recovery. Jurisdiction of the defendants was obtained by constructive service. The reason assigned by the plaintiffs for their long delay in bringing suit was, in essence, that during the period of time, transpiring since the default in the mortgage and the institution of suit, the property had been virtually valueless and not worth the amount of the debt secured; that during said period of time the defendants had been absent continuously from the state and consequently a deficiency decree could not have been entered against them had a suit been brought earlier to foreclose the mortgage; that in late years the property had so enhanced in value that the claim can now be satisfied out of the property.

The defendants came in and answered the complaint pleading as a defense to the suit that the cause of action was barred under applicable limitation statutes and that consequently a suit thereon could not be maintained. The trial court rejected this defense and entered a final decree in favor of the plaintiffs for the full amount of principal, interest, costs and taxes.

The pertinent statutes in force at the time the notes and mortgage were executed, and in 1926 when the notes and mortgage were assigned to the plaintiffs' predecessors in title, provided that an action upon any contract, obligation, or liability founded upon an instrument of writing under seal could be commenced only within twenty years of the accrual of the cause of action; section 2939, R.G.S. 1920; section 4663, C.G.L. 1927; section 95.11, F.S. 1941, F.S.A.; Bennett v. Herring, 1 Fla. 387; Bourne v. State Bank of Orlando & Trust Co., 106 Fla. 46, 142 So. 810; Jordan v. Sayre, 24 Fla. 1, 3 So. 329. They provided, further, that 'If, when the cause of action shall accrue against a person, he is out of the state, the action may be commenced within (20 years) after his return to the state * * *' Section 2928(4), R.G.S. 1920; section 4648(4), C.G.L. 1927; section 95.07, F.S. 1941, F.S.A.

In 1945 the legislature enacted Chapter 22560, Laws of Florida 1945, section 1 of which provides that 'The lien of a mortgage * * * encumbering real estate * * * shall terminate and no action or proceeding of any kind shall be begun to enforce or foreclose the mortgage after the expiration of the following periods * * * (1) If the final maturity of an obligation secured by a mortgage is ascertainable from the record of the mortgage, the period of limitation shall be twenty years after the date of such maturity; (2) If the final maturity of an obligation secured by a mortgage is not ascertainable from the record of the mortgage, the period of limitation shall be twenty years from the date of the mortgage.' Section 1, Chapter 22560, Laws of Florida 1945; section 95.28, Florida Statutes 1951, F.S.A. Section 3 of Chapter 22560 provides: 'If the record of the mortgage shows that the mortgage secures an obligation payable in installments, and the maturity date of the final installment of the obligation is ascertainable from the record of the mortgage, the periods of limitation in (section 1) hereof shall commence to run from the maturity date of the last installment of the obligation secured by the mortgage as ascertained from the record thereof.' Section 95.30, Florida Statutes 1951, F.S.A. Under section 4 of the act it is provided that 'The periods of limitation set forth in this Act shall be extended only as provided in this Act; and shall not otherwise be extended by any other agreement, non-residence, disability, partial payment, by operation of law, or by any other method.' (Emphasis supplied.) Section 95.31(1) Florida Statutes 1951, F.S.A.; and a succeeding provision of the law is to the effect that 'After one year from May 4, 1945, the provisions of this law shall apply to all mortgages in existence on May 4, 1945, on which actions to foreclose have not been connenced * * * provided, however, this law shall not apply to mortgages the enforcement of which is barred under existing law on May 4, 1945.' Section 95.34, Florida Statutes 1951, F.S.A., section 9, Chapter 22560, supra.

It is plain that except for the provisions contained in sections 4 and 9 of Chapter 22560, Laws of 1945, no question could have arisen respecting the right of the plaintiffs to institute their foreclosure action, because at all times subsequent to the execution of the notes and mortgage the defendants were non-residents and were absent from the state. The dominant question on this appeal is whether the enactment of sections 4 and 9 of Chapter 22560 operated to set the statute of limitations running as to such absent defendants, so as to preclude the institution of this suit after one year from the passage of the act, in view of section 33, Article III of the Florida Constitution, F.S.A. which...