Haines City Citrus Growers' Ass'n v. Petteway

• Decision Date: 05 December 1932
• Citation: 107 Fla. 344,145 So. 183
• Court: Florida Supreme Court
• Parties: HAINES CITY CITRUS GROWERS' ASS'N v. PETTEWAY.

145 So. 183

107 Fla. 344

HAINES CITY CITRUS GROWERS' ASS'N v. PETTEWAY.

Florida Supreme Court

December 5, 1932

Rehearing Denied Jan. 11, 1933.

Commissioners' Decision.

Error to Circuit Court, Polk County; Harry G. Taylor, Judge.

Action by Gordon Petteway, as receiver, to recover net proceeds from fruit which was severed and sold to pay fruit crop mortgage. Judgment for plaintiff, and defendant brings error.

Reversed.

COUNSEL George Palmer Garrett, of Orlando, for plaintiff in error.

Huffaker & Edwards, of Bartow, for defendant in error.

OPINION

MATHEWS C.

Jennie K. Lesley and husband executed and delivered to Lidie C Oblinger a mortgage dated August 13, 1928, in the amount of $7,500, upon the West half of the Southwest quarter of the Southeast quarter of Section 19, Township 27 South, Range 27 East, Polk county, Fla. This mortgage on the realty was not paid, and on August 22, 1929, bill was filed to foreclose it. Lis pendens describing the land was filed on the same date. A receiver, F. A. Randall, president of the defendant corporation, was appointed by order of the court, dated November 15, 1929, and filed November 18, 1929, which authorized him to take possession of the premises and cultivate, fertilize, spray, and tend the citrus fruit grove. A decree of foreclosure was entered Mrach 25, 1930, and the lands sold on the May, 1920, rule day.

On September 19, 1929, after the filing of the lis pendens in the foreclosure proceeding, a fruit crop mortgage from Jennie K. Lesley and husband to the defendant was filed and recorded. The fruit crop mortgage was dated August 10, 1928 and was given to secure the sum of $485.49, upon the citrus fruit crop then growing on the land described in the real estate mortgage, and on the fruit crops to be grown on such land for a period of five years, or until payment of the indebtedness thereby secured. The fruit crop mortgage therein provided the defendant, as agent of the mortgagor, might enter and remove the fruit and convert it into money, and thereupon apply the net proceeds in payment of its mortgage. This mortgage contained a covenant on the part of the mortgagors that said premises and fruit crop are free and discharged from all liens except mortgage to Lidie C. Oblinger, recorded in Mortgage Book 363, page 599, Polk county records. The defendant, on February 21, 1930, picked from the groves 239 boxes of oranges, 104 boxes of grapefruit, and 14 1/2 boxes of tangerines, from which it received net returns in the amount of $485.65.

In July, 1930, Gordon Petteway was substituted for Randall as receiver, and in November, 1930, Gordon Petteway, as receiver, instituted suit in the court below for the purpose of recovering from the defendant the net amount received by it from sale of the citrus fruit picked by it from the grove. Final judgment was entered for the plaintiff in the suit brought by Petteway, as receiver, and defendant sued out writ of error.

The question here presented is whether the net returns from the citrus fruit, severed before foreclosure sale, may apply in payment of the fruit crop mortgage, or must pass to the receiver to be applied in further reduction of the indebtedness which the real estate mortgage was given to secure.

Growing citrus fruit crops, such as oranges, grapefruit, and tangerines, which essentially owe their annual existence to cultivation and labor, including fertilizing and spraying for control of insects and diseases which attack and injure the fruit, though products of perennial plants or trees, are chattels, while the trees themselves are part of the realty. Summerlin v. Orange Shores, Inc., 97 Fla. 996, 122 So. 508, 511. In Gentile Brothers, Inc., v. Bryan, 101 Fla. 233, 133 So. 630, we held that a mortgage upon fruit produced by cultivation upon the homestead is not an alienation of the homestead real estate requiring the joint consent of the husband and wife, article 10 Constitution of Florida, though a husband has no power to mortgage the crops grown on the separate statutory real estate of his wife, without her written consent, as required by the Constitution. Shoemaker v. Waters, 59 Fla. 414, 52 So. 586; article 11, §§ 1 and 2, Constitution of Florida.

Under the provisions of section 1, Chapter 10279, Acts of 1925; Compiled General Laws, § 5741, valid mortgage liens may be created upon agricultural, horticultural, or fruit crops, then planted, growing, or to be thereafter planted, grown, or raised; provided that the lands upon which said crops are grown or raised, or are to be thereafter grown or raised, are fully described in the mortgage. Summerlin v. Orange Shores, Inc., supra. Such mortgages on crops not in being may operate as a lien on such crops as soon as they come into existence. Summerlin v. Orange Shores, Inc., supra; 5 R. C. L. 407. Fruit crop mortgages, however, in order to be valid against subsequent incumbrances or subsequent purchasers in good faith, shall be executed, acknowledged, and recorded, as is now or may be hereafter provided by law, upon mortgages upon real estate. Section 2, Chapter 10279, Acts of 1925; section 5742, Compiled General Laws; see, also, section 5726, Compiled General Laws of 1927. But fruit crop mortgages given under sections 5741 and 5742, Compiled General Laws, do not take precedence over prior existing recorded mortgages in terms covering the fruit crops and lands, unless by consent of the prior mortgagees. Plant City Agricultural Credit Co. v. Pool (Fla.) 139 So. 595; Hyman v. City Trust Co., 99 Fla. 1202, 128 So. 611. Under the statutes of this state, a mortgage is held to be a specific lien on the property therein described, and not a conveyance of the legal title or the right of possession. Section 5725(3837), Compiled General Laws. And the mortgagor and those claiming under him, where there is no receivership over the property, are entitled to the possession of the mortgaged property until sale made pursuant to decree of foreclosure. Brown v. Snell, 6 Fla. 741; Pasco v. Gamble, 15 Fla. 562.

In Wooten v. Bellinger, 17 Fla. 289, Wooten brought his bill to foreclose a lien for unpaid purchase money for lands sold to Davis, and also to hold a crop of cotton raised on the land as subject to the same lien or charge. Bellinger held a duly recorded mortgage upon the cotton. The bill charged that Bellinger took his mortgage from Davis to secure advances, supplies, and general indebtedness; that Davis was insolvent, and that the land was not of sufficient value to pay the amount of purchase money, interest, and taxes due and to become due. Complainant insisted that his position was that of a mortgagee, and that in effect he was foreclosing a mortgage, and that as mortgagee he had not only a lien upon the land, but on the rents, issues, and profits, and claimed that Pasco v. Gamble, 15 Fla. 562, establishes the doctrine that a mortgage is in equity a charge upon the products of the land, as well as upon the land itself, and by deduction therefrom that a mortgage upon the land is a mortgage upon the products. This court there said:

'A mortgage is a legal and equitable lien upon the land, but it is neither a legal nor equitable lien upon the profits of the land. This charge upon the produce springs out of the peculiar circumstances of the case and is not

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