Lesnoff v. Becker
| Decision Date | 28 May 1931 |
| Citation | 135 So. 146,101 Fla. 716 |
| Parties | LESNOFF v. BECKER et al. |
| Court | Florida Supreme Court |
Suit by Mamie Becker, a widow, against the Delbeck Investment Company and others, wherein the defendant, Samuel Lesnoff, filed a cross-bill. From the decree rendered, the defendant and cross-complainant appeals.
Affirmed. Appeal from Circuit Courr, Dade County; H. F Atkinson, judge.
Harry Gordon and Leo Rosen, both of Miami, for appellant.
Dunbar H. Johnson, Jr., and Lloyd C. Hooks, both of Miami, for appellees.
Mamie Becker, a widow, filed suit to cancel of record a second mortgage given to secure the payment of $2,900, and prayed that said mortgage be expunged from the public records where it was recorded and declared null and void. Delbeck Investment Company, the mortgagor and the grantor in a deed to the complainant, and Florida Smelting Company, mortgagee in the second mortgage, and Samuel Lesnoff, assignee of the second mortgage, were made defendants. The first mortgage was for $7,000. It was recorded March 8, 1928. The warranty deed from Delbeck Investment Company to the complainant was dated May 25, 1928, and recorded July 3, 1928, and it was understood between the parties that the conveyance from Delbeck Investment Company to complainant was subject to the first mortgage and she obligated to pay the same. The record showed no other incumbrance against the property at the time the deed was made. The mortgage from Delbeck Investment Company to Florida Smelting Company was dated April 27, 1928, and recorded October 24, 1928, after complainant had paid the full purchase price of the property which was conveyed to her, except the $7,000 mortgage.
The Florida Smelting Company mortgage was assigned to Samuel Lesnoff under date of November 14, 1928, and the assignment recorded January 25, 1929.
Samuel Lesnoff filed answer and cross-bill. Service was had on all parties defendant to the original bill and on all parties named as defendants in the cross-bill. Testimony was taken before a master.
Whether or not the decree should have been entered as it was by the chancellor depends upon a question of fact. That question of fact is whether or not the complainant in the original suit at the time she purchased the property or at any time before she paid the balance of the purchase price except the $7,000 mortgage which she assumed and obligated to pay, had notice, either actual or constructive, of the existence of the mortgage from Delbeck Investment Company to Florida Smelting Company. The evidence clearly establishes the fact that she had no actual knowledge of the existence of such mortgage. Section 3822, Rev. Gen. St. 1920, section 5698, Comp. Gen. Laws 1927, provides as follows:
'Conveyances to be recorded.--No conveyance, transfer or mortgage of real property, of of any interest therein, nor any lease for a term of one year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law; nor shall any such instrument made or executed by virtue of any power of attorney be good or effectual in law on in equity against creditors of subsequent purchasers for a valuable consideration and without notice unless the power of attorney be recorded before the accruing of the right of such creditor or subsequent purchaser.'
In Rambo v. Dickenson, 92 Fla. 758, 110 So. 352, in an opinion written by Mr. Chief Justice Brown, this court said:
'Under our recording statutes, subsequent purchasers, acquiring title without notice of a prior unrecorded deed, mortgage, or transfer of real property, or any interest therein, will be protected against such unrecorded instrument, unless the party claiming thereunder can show that such subsequent purchaser acquired the title with actual notice of such unrecorded conveyance or mortgage; and the burden of showing such notice is upon the party...
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In re Diamond
...(Bankr.M.D.Fla.1989). However, a bona fide purchaser takes title subject to any recorded liens or interests. See Lesnoff v. Becker, et al., 101 Fla. 716, 135 So. 146, 147 (1931); Carolina Portland Cement Co. v. Roper, et al., 68 Fla. 299, 67 So. 115, 116 (1914); Caribank v. Stuart Frankel a......
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In re CJW Ltd., Inc.
...suggests a fact which the prudent searcher would investigate, even if this requires searching outside the record. Lesnoff v. Becker, 101 Fla. 716, 135 So. 146 (1931); Hull v. Maryland Casualty Company, 79 So.2d 517 Applying these principles in this case, the November 30, 1990, Davis mortgag......
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Cone Bros. Const. Co. v. Moore
... ... alleged, then the mortgage of appellants is prior ... Thompson v. Maxwell, 16 Fla. 773; Lesnoff v ... Becker, 101 Fla. 716, 135 So. 146; Rambo v ... Dickenson, 92 Fla. 758, 110 So. 352; Sapp v ... Warner, 105 Fla. 245, 141 So. 124, 127, ... ...
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Rinehart v. Phelps
...and recording of their own, as is alleged, then the mortgage of appellants is prior. Thompson v. Maxwell, 16 Fla. 773; Lesnoff v. Becker, 101 Fla. 716, 135 So. 146; Rambo v. Dickenson, 92 Fla. 758, 110 So. Sapp v. Warner, 105 Fla. 245, 141 So. 124, 127, 143 So. 648, 144 So. 481.['] * * * 'T......
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Chapter 10-2 Third-Party Purchasers
...they are purchasers pendente lite.47--------Notes:[11] See § 695.01, Fla. Stat. (2013) and § 695.11, Fla. Stat. (1997); Lesnoff v. Becker, 135 So. 146, 147 (Fla. 1931) ("Under our recording statutes, subsequent purchasers, acquiring title without notice of a prior unrecorded deed, mortgage,......
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Chapter 10-2 Third-Party Purchasers
...to a third party's defenses.--------Notes:[11] See § 695.01, Fla. Stat. (2013) and § 695.11, Fla. Stat. (1997); Lesnoff v. Becker, 135 So. 146, 147 (Fla. 1931) ("Under our recording statutes, subsequent purchasers, acquiring title without notice of a prior unrecorded deed, mortgage, or tran......