Kane v. Eustis

• Decision Date: 28 September 1932
• Parties: KANE et al. v. EUSTIS et ux.
• Court: Florida Supreme Court

143 So. 655

106 Fla. 817

KANE et al. v. EUSTIS et ux.

Florida Supreme Court, Division B.

September 28, 1932

Suit by W. H. Eustis and wife against T. Edward Kane and others. Decree for complainants and defendants appeal.

Affirmed in part and reversed in part, and cause remanded with directions. Appeal from Circuit Court Hillsborough County; F. M. Robles, judge.

COUNSEL

E. L Bryan, of Tampa, for appellants.

Baya &amp Baya and James D. Moran, all of Tampa, for appellees.

OPINION

DAVIS J.

One O M. Dean purchased a tax certificate for 1926 taxes due on the property involved in this suit, and held the same until August, 1928, when the assigned it to Elizabeth B. Dean, who afterwards obtained a tax deed thereon. Later Elizabeth B. Dean by quitclaim deed conveyed her interest in the property acquired under the tax deed, to one W. F. Zimmerman. Zimmerman at that time held a second mortgage on the property against the original owner who had let the land sell for its taxes.

The chancellor ruled in the suit below brought by the first mortgagee to foreclose his mortgage, and to establish his priority as against Zimmerman, the second mortgagee, that Zimmerman's acquisition of a quitclaim deed from Elizabeth B. Dean, the grantee in the above-mentioned tax deed issued on the mortgaged property, did not convey to him such paramount title against the first mortgagee as would defeat the foreclosure of the first mortgage or supersede its priority as a first mortgage lien superior to the rights of Zimmerman as a second mortgagee.

The appeal here is from a final decree of foreclosure rendered in favor of the first mortgagee, which decreed the rights of Zimmerman, the second mortgagee and holder of the quitclaimed tax title, to be subordinate to the lien of the first mortgage.

The true rule governing situations like the present was laid down by this court in the case of Gorton v. Paine, 18 Fla. 117, where this court, speaking through Mr. Justice Westcott, said:

'Chancellor Kent says of this power of a court of equity in such suits as this ([Kershaw v. Thompson] 4 John. Ch. 609) that the power to apply the remedy is co-extensive with the jurisdiction over the subject-matter. The subject-matter here arises primarily from the equitable relations of a first and second mortgagee with reference to the mortgaged premises, and it is hardly necessary to say that these relations are peculiarly the subject of equitable cognizance. While the general rule in cases where the party in possession is a defendant to the suit is as stated, and while the relations as disclosed by the bill are the subjects of equity jurisdiction, yet if a person in possession shows a right paramount to the mortgage the court will not attempt to decide any question of legal title, and the possession must then be sought for by proceedings at law. In this view of the law, as we conceive it to be, the question is, does this answer to the rule show a right paramount to the mortgage. The answer sets up a title acquired from the State of Florida, which the defendant alleges is paramount to the mortgage. It gives no date of the deed. When she acquired this title, whether during the time she was a second mortgagee out of possession, or when she was in possession after her foreclosure suit, or whether it was before the existence of the first mortgage, or whether the title she acquired was a tax title, or a deed from the State to lands in which the State had a proprietary interest, is not stated. The principle and general rule as to the statement of facts in pleadings of this character is that they must be set forth with certainty, by which is meant a clear and distinct statement of the facts which constitute the ground of defense, so that they may be understood by the party who is to answer them, and by the court who is to give judgment. Now the law is unquestionably that a second mortgagee cannot set up a tax title as against a prior mortgagee. [Smith v. Lewis], 20 Wis. 350; [Avery v. Judd], 21 Wis. 262; [Fair v. Brown], 40 Iowa, 209; [Porter v. Lafferty], 33 Iowa, 254; [Stears v. Hollenbeck], 38 Iowa 550; Jones on Mortgages, 680. The rule upon this subject, as announced by the Supreme Court of Iowa, is that as between a first and second mortgagee of land equity regards the land as a common

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