Langford v. Wauchula State Bank

• Decision Date: 03 October 1941
• Citation: 4 So.2d 10,148 Fla. 236
• Parties: LANGFORD v. WAUCHULA STATE BANK et al.
• Court: Florida Supreme Court

4 So.2d 10

148 Fla. 236

LANGFORD v. WAUCHULA STATE BANK et al.

Florida Supreme Court

October 3, 1941

Rehearing Denied Oct. 17, 1941.

Appeal from Circuit Court, Hardee County; H.C. Petteway Judge.

Bill in equity by Gordon B. Langford against Wauchula State Bank, a corporation, and others, for the partition of certain vouchers delivered in settlement of fire loss and for general relief. From a final decree denying partition but ordering distribution of proceeds of vouchers, plaintiff appeals.

Decree affirmed.

Leitner & Leitner and Sumter Leitner, all of Arcadia, for appellant.

L. Grady Burton, of Wauchula, for appellees.

ADAMS, Justice.

This appeal is from a final decree ordering distribution of the proceeds of certain fire insurance money and denying partition of same.

Appellant filed a bill in equity styled partition against Wauchula State Bank W.W. Whitehurst and F.L. Revell for the partition of certain vouchers and the allowance of attorneys' fees.

The record shows that Revell was the owner of certain land with buildings thereon. He, Revell, executed a mortgage to defendant Bank to secure an indebtedness of $1,700 and in obedience to covenants therein contained, procured and delivered to the Bank a fire insurance policy payable to the Bank as its interest might appear. Thereafter Revell conveyed the property to appellant, who assumed and agreed to pay the $1,700 mortgage and continued to carry the insurance. There was a fire loss. The loss was adjusted and vouchers aggregating $2,375 were delivered to the Bank payable to appellant, Revell, the Bank and Whitehurst. Whitehurst and Revell disclaimed interest in the vouchers. There was a dispute between appellant and the Bank. During the pendency of the suit a receiver was appointed on motion of appellant who had converted the vouchers to cash. Appellant claimed the principal had been reduced to $1,500 and the interest had been paid until a short time before suit, whereas the Bank claimed the full $1,700 with interest from date.

The chancellor determined as a matter of law that partition would not lie because the Bank had only a lien to the money but retained jurisdiction to distribute the fund. The propriety of this action forms the first question for us to decide.

The chancellor found as a fact the indebtedness due the Bank was $1,700 with interest from date. The correctness of such finding forms the second question for our determination.

The appellant relies on Section 5002, C.G.L., as authority to partition personal property. This reads as follows:

"Provisions of law applicable to.--All the provisions of law applicable to partition and sale for partition of real estate, and the proceedings therefor, shall be applicable to the partition and sale for partition of personal property and the proceedings therefor, as far as the nature of the property will permit."

We construe this statute to mean that the procedure to partition personal property shall be the same as to real property insofar as plaintiff is required to allege and prove joint tenancy tenants...