Key West Wharf & Coal Co. v. Porter

• Decision Date: 23 April 1912
• Citation: 63 Fla. 448,58 So. 599
• Parties: KEY WEST WHARF & COAL CO. et al. v. PORTER.
• Court: Florida Supreme Court

58 So. 599

63 Fla. 448

KEY WEST WHARF & COAL CO. et al. v. PORTER.

Florida Supreme Court

April 23, 1912

Appeal from Curcuit Court, Monroe County; J. B. Wall, Judge.

Bill in equity by Louisa Porter against the Key West Wharf & Coal Company and another. From orders overruling pleas filed by the defendants and sustaining exceptions by the complainant to the answers of the defendants, defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

A general demurrer to the whole bill for want of equity should be overruled, if there is any ground for equitable relief in the bill, and this even if there are any number of grounds of special demurrer to parts of the bill.

The purchaser of property at a foreclosure sale for the full amount due on the decree of foreclosure, when, for any reason, the foreclosure proceedings are imperfect, irregular or void, becomes subrogated to all the rights of the mortgagee in and to such mortgage and the indebtedness that it secured, and becomes thereby virtually an equitable assignee of such mortgage and of the debt that it secured with all the rights of the original mortgagee, and becomes entitled to an action de novo for the foreclosure of such mortgage against all parties holding junior incumbrances or the legal title, who had been omitted as parties to such original foreclosure proceedings under which he bought.

Where a mortgagee holds two or more mortgages upon the same premises they should both be set out in the complaint and foreclosed in the same action; only one suit to foreclose both being proper.

a subsequent purchaser, who expressly assumes the payment of prior existing mortgages upon property that he buys, as part of the purchase price for such property, is estopped to defend against the foreclosure of such mortgages, either upon the ground of usury, or upon the ground of failure or want of consideration therefor, or upon any other grount.

A party claiming title under one who is estopped will also be bound by the estoppel.

The courts in foreclosure proceedings have no power to release any part of the property from the lien of the mortgage by affixing thereto a sum, less than the entire sum of the mortgage, which, when paid, shall release or redeem such part from the lien of the mortgage.

COUNSEL Alex. St. Clair-Abrams, of Jacksonville, for appellants.

W. Hunt Harris, of Key West, for appellee. Louisa Porter, the appellee, on the 22d day of March, 1910, filed her bill in equity in the circuit court of Monroe county for foreclosure of two mortgages against George W. Allen, as administrator de bonis non of the estate of John J. Philbrick, deceased, Jeannette L. Murphy, as executrix of the last will and testament of Charles A. Murphy, deceased and in her own right, Helen B. Sturges, and Edward E Sturges, her husband, Elizabeth Murphy, Marjorie Murphy, Reginald Murphy, and Gerard Murphy, George Lewis, Key West Wharf & Coal Company, a corporation under the laws of New Jersey, William W. Shaw, Hester N. Laflin, Mollie S. Laflin in her own right and as administratrix of the estate of John P. Laflin, and all parties claiming interests under Charles A. Murphy, deceased, and John P. Laflin, deceased, and Albert S. Laflin, deceased, or otherwise. The bill in brief sets up the following facts: That John J. Philbrick, late of Monroe county, deceased, being then the owner of certain described real estate fronting on the water in the city of Key West, and being then indebted to George Lewis in the aggregate sum of $18,000, did, on the 17th day of October, A. D. 1891, make and deliver to the said Lewis his three several promissory notes, one of them for $10,000, payable three years after date, another of them for $5,000, payable four years after date, and the remaining one of them for $3,000, payable five years after its date, all of them bearing interest at the rate of 10 per cent. per annum, payable annually, and on the same date, to secure the payment of said indebtedness, the said Philbrick and his wife, Mary A. Philbrick, did execute and deliver to the said Lewis their certain mortgage covering the following described lands, tenements, and hereditaments, situated, lying, and being in the county of Monroe, state of Florida, to wit: All that piece or parcel of land situate, lying, and being in the city of Key West, and known on the map of said city delineated by William A. Whitehead as the westerly part of lot No. 1, in square No. 3, bounded easterly by a street called Water or Wall street, 30 feet wide, and running parallel with Front street and 100 feet from it, southerly by part of lot No. 2 in same square, westerly by the waters of the bay, and northerly by Duval street. That said mortgage was duly executed and acknowledged, and was duly recorded in the public records of Monroe county on the 29th of October, A. D. 1891. That the said John J. Philbrick afterwards, on the 14th day of September, A. D. 1897, died, intestate, leaving his widow, the said Mary A. Philbrick, as his sole heir at law. That on the 18th day of September, 1897, one H. L. Stricker was duly appointed and qualified as administrator of the said John J. Philbrick, deceased, and, after administering said estate up to the 2d of September, 1898, was duly discharged, and that on the 1st of August, A. D. 1899, the defendant George W. Allen was duly appointed and qualified as administrator de bonis non of said estate. That the said John J. Philbrick, during his lifetime, notwithstanding the said three notes had become due, paid no part of the principal sum mentioned therein, but that the interest on said principal sums was paid up to the 17th day of October, 1901, and that there now remains due and unpaid the principal sum of $18,000, mentioned in said notes and mortgage, with interest thereon at the rate of 10 per cent. per annum from the 17th day of October, A. D. 1901. That the said John J. Philbrick, during his lifetime, joined by his said wife, Mary A. Philbrick, on the 1st day of March, 1895, executed and delivered a mortgage deed on the hereinbefore mentioned and described real estate to Eduardo H. Gato, to secure unto him, the said Gato, the payment of a promissory note for the sum of $35,000, payable within five years from the date thereof, March 1, 1895, with interest from date at the rate of 6 per cent. per annum. That no part of said principal sum and interest thereon has been paid. That said last-mentioned mortgage deed was, on the 1st day of March, 1895, duly recorded in the public records of Monroe county, Fla. That on the 6th day of April, 1898, the said Mary A. Philbrick, the sole heir at law of the said John J. Philbrick, conveyed in fee simple the said mortgaged lands and premises to one H. L. Stricker. That the said H. L. Stricker, on the 17th day of November, 1898, conveyed the same mortgaged lands in fee simple to John P. Laflin and Albert S. Laflin. The said John P. Laflin and Albert S. Laflin, joined by their respective wives, on the 24th day of November, 1900, conveyed in fee simple a part of the said described real estate to W. J. H. Taylor. That in the deed of conveyance, executed and delivered to the said W. J. H. Taylor, and accepted by him, there was contained the following provisions: 'Subject, however, to mortgages on all of the foregoing premises, aggregating in amount $53,000, which the said W. J. H. Taylor assumes to pay.' That the mortgage of the said George Lewis for $18,000, and of the said Eduardo H. Gato for $35,000, aggregating $53,000, were the only mortgages existing on said date embracing said real estate; and the said W. J. H. Taylor, as a part of the purchase price, agreed to pay the same. That on the 24th day of November 1900, the said W. J. H. Taylor, being indebted to the said John P. Laflin and Albert S. Laflin in the sum of $22,500, made and delivered his certain promissory note, and, joined by his wife, executed and delivered a mortgage deed to secure the payment of said note, covering only the same real estate that had been conveyed to him as aforesaid, by the said Laflins, which mortgage was duly recorded in Monroe county on November 27, 1900. That on said 24th day of November, 1900, the said W. J. H. Taylor, being indebted to the said Mary A. Philbrick in the sum of $3,000, made and delivered to her his promissory note for that sum, and executed and delivered to her a mortgage deed to secure the same, embracing only that part of the said real estate that had been conveyed to him by the said Laflins, which mortgage was duly recorded on the public records of Monroe county on the 27th of November, 1900. That afterwards, on the 5th day of March, 1902, the said W. J. H. Taylor and wife executed and delivered a mortgage deed on said land to the First National Bank of Key West, Fla., to secure unto it the payment of $6,500, which mortgage was duly recorded in the public records of Monroe county. That on the said 5th day of March, 1902, the said W. J. H. Taylor agreed to sell to the Key West Wharf & Coal Company, a corporation, the land that he had purchased from the said Laflins, on condition, and as a part of the purchase price, that the said the Key West Wharf & Coal Company would assume to pay the mortgages existing on said real estate, aggregating $85,000. That on said 5th day of March, 1902, the said real estate was incumbered with the following mortgages, viz.: George Lewis, $18,000; E. H. Gato, $35,000; J. P. and A. S. Laflin, $22,500; Mary A. Philbrick, $3,000; the First National Bank of Key West, $6,500. That on the 5th day of March, 1902, the said W. J. H. Taylor, joined by his wife, executed and delivered to the said Key West Wharf & Coal Company (incorporated) a deed, conveying the real estate that had theretofore been conveyed to him by the said Laflins,...