H.K.L. Realty Corp. v. Kirtley
| Court | United States State Supreme Court of Florida |
| Writing for the Court | SEBRING; ROBERTS |
| Citation | 74 So.2d 876 |
| Decision Date | 05 October 1954 |
| Parties | H. K. L. REALTY CORPORATION et al., Apppellants, v. James D. KIRTLEY and Susan Kirtley, Appellees. |
Page 876
v.
James D. KIRTLEY and Susan Kirtley, Appellees.
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
Page 877
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...
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Trustees of Tufts College v. Triple R. Ranch, Inc., Nos. 41535
...addition, we have previously held constitutional other legislation removing interests in land. H. K. L. Realty Corp. v. Kirtley, Fla.1954, 74 So.2d 876; Basye, Clearing Land Titles, supra, at Section The primary object of the Legislature in enacting F.S. section 704.05 F.S.A. was to provide......
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Gregg v. Williamson, No. 455
...U.S. 90, 18 S.Ct. 38, 42 L.Ed. 392; Evans v. Finley, 166 Or. 227, 111 P.2d 833, 133 A.L.R. 1318; H. K. L. Realty Corp. v. Kirtley, Fla., 74 So.2d 876; Shanks v. Blaine's Heirs, 201 Okl. 350, 206 P.2d 978; Hill v. Gregory, 64 Ark. 317, 42 S.W. 408; Rombotis v. Fink, 89 Cal.App.2d 378, 201 P.......
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City of Miami v. St. Joe Paper Co., 51775
...before its passage, of a 1953 statute which barred claims against an estate after three years. In H. K. L. Realty Corporation v. Kirtley, 74 So.2d 876 (Fla.1954), this court upheld the constitutionality of the application of a twenty-year statute of limitations to mortgages on a given date ......
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Walker & LaBerge, Inc. v. Halligan, No. 49056
...440, 79 L.Ed. 977 (1935); Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So.2d 521 (Fla.1973); H.K.L. Realty Corp. v. Kirtley, 74 So.2d 876 (Fla.1954); Indemnity Insurance Co. of N. America v. The Brooks-Fisher Insulating Co., 140 So.2d 613 (Fla.2d DCA 1962). We have recently had t......
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Trustees of Tufts College v. Triple R. Ranch, Inc., Nos. 41535
...addition, we have previously held constitutional other legislation removing interests in land. H. K. L. Realty Corp. v. Kirtley, Fla.1954, 74 So.2d 876; Basye, Clearing Land Titles, supra, at Section The primary object of the Legislature in enacting F.S. section 704.05 F.S.A. was to provide......
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Gregg v. Williamson, No. 455
...U.S. 90, 18 S.Ct. 38, 42 L.Ed. 392; Evans v. Finley, 166 Or. 227, 111 P.2d 833, 133 A.L.R. 1318; H. K. L. Realty Corp. v. Kirtley, Fla., 74 So.2d 876; Shanks v. Blaine's Heirs, 201 Okl. 350, 206 P.2d 978; Hill v. Gregory, 64 Ark. 317, 42 S.W. 408; Rombotis v. Fink, 89 Cal.App.2d 378, 201 P.......
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City of Miami v. St. Joe Paper Co., 51775
...before its passage, of a 1953 statute which barred claims against an estate after three years. In H. K. L. Realty Corporation v. Kirtley, 74 So.2d 876 (Fla.1954), this court upheld the constitutionality of the application of a twenty-year statute of limitations to mortgages on a given date ......
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Walker & LaBerge, Inc. v. Halligan, No. 49056
...440, 79 L.Ed. 977 (1935); Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So.2d 521 (Fla.1973); H.K.L. Realty Corp. v. Kirtley, 74 So.2d 876 (Fla.1954); Indemnity Insurance Co. of N. America v. The Brooks-Fisher Insulating Co., 140 So.2d 613 (Fla.2d DCA 1962). We have recently had t......