MacKay v. Bacon

• Decision Date: 20 February 1945
• Citation: 20 So.2d 904,155 Fla. 577
• Parties: MacKAY v. BACON.
• Court: Florida Supreme Court

20 So.2d 904

155 Fla. 577

MacKAY v. BACON.

Florida Supreme Court

February 20, 1945

Rehearing Denied March 6, 1945.

Appeal from Circuit Court, Palm Beach County; Jos. S White, judge.

R.C Prescott and W. F. Finch, both of West Palm Beach, for appellant.

Edwin T Osteen and W. J. Lake, both of West Palm Beach, for appellee.

ADAMS, Justice.

On July 14, 1942, a final decree of foreclosure was entered upon constructive service of process wherein Christy Ann MacKay was plaintiff and Roger W. Bacon was defendant. On May 24, 1944, Bacon procured permission of the court, which entered the foreclosure, to file a bill to vacate the decree of foreclosure upon the ground that reasonable diligence was not exercised to learn of his address and place of residence as a prerequisite to obtaining constructive service of process. The court denied a motion to dismiss the bill; an answer was filed and testimony was taken. Upon final hearing the prayer of the bill was granted and Mrs. MacKay has appealed.

She questions the right to file the suit inasmuch as the time for appeal had long since expired and cites among other cases Zewadski v. Barksdale, 86 Fla. 552, 98 So. 590; Quee v Breed, 122 Fla. 316, 165 So. 56; Dennis v Ivey, 134 Fla. 181, 183 So. 624. These cases do not control in this case because this bill is more in the nature of a bill to impeach the foreclosure decree for fraud practiced in the procurement of service of process. See Hall v. Hall, 93 Fla. 709, 112 So. 622, and Florida Chancery Pleading and Practice by Kooman, page 483, Sec. 199.

She also claims that Bacon has forfeited his right to upset the decree by his delay. This claim provokes the question whether the foreclosure decree was void or voidable. If it were void, then delay by Bacon could not help it. If it were voidable, then undue acquiescence by Bacon would cure the defect. The defect was not apparent on the face of the record in the foreclosure proceeding and consequently the decree was not void, but voidable. See Bryant v. Bryant, 101 Fla. 179, 133 So. 635. The record shows no change in the status of the parties or the property that would prejudice Mrs. MacKay and the delay has, in no way, harmed her.

The next question is whether the chancellor abused his discretion in weighing the evidence. It is not a question what we might decide from the evidence, but can we say from a study of the evidence the decree was clearly erroneous? The Chancellor is the trier of facts and we exercise the function of a court of review to search for error, if any, in his finding. The evidence discloses that Mrs. MacKay purchased a $3500 mortgage (that had been paid down to about $850) for $800 which had long been in default. The mortgage covered property just across the street from her and was owned by Bacon who had lived on the adjoining property for many years. Mrs. MacKay knew Bacon, the maker of the mortgage and the owner of the property. She purchased the mortgage in the early part of 1942. The foreclosure suit was filed on April 20, 1942, but the affidavit for constructive process was not made until May 21, 1942. Bacon went to Washington, D. C., in February, 1942, leaving a tenant in his home until some time in May, 1942. ...