Mid-State Homes, Inc. v. Ritchie

• Decision Date: 18 January 1966
• Docket Number: No. H-33,MID-STATE,H-33
• Citation: 181 So.2d 725
• Parties: HOMES, INC., Appellant, v. William RITCHIE et ux., et al., Appellees.
• Court: Florida District Court of Appeals

Page 725

181 So.2d 725

MID-STATE HOMES, INC., Appellant, v. William RITCHIE et ux., et al., Appellees.

No. H-33.

District Court of Appeal of Florida, First District.

Jan. 18, 1966.

Harry M. Hobbs, Tampa, for appellant.

Robert L. Wilson, St. Petersburg, for appellees.

WIGGINTON, Judge.

This interlocutory appeal seeks review of an order entered by the Circuit Court of Volusia County, in chancery, setting aside a decree pro confesso and summary final decree of foreclosure therefore rendered in the cause, and vacating and setting aside all supplemental relief theretofore sought and obtained by the plaintiff including the certificate of sale, certificate of disbursements, and possessory rights in the real estate involved therein and now claimed by defendant appellee.

From a review of the record it appears that appellant filed in the trial court a complaint to foreclose a mortgage owned by it and encumbering property in Volusia County described as Lot 29, and the north half of Lot 30 of Thomas Fitch Grant, as recorded in Map Book #1, Page #1, Public Records of Volusia County, Florida. The mortgagors were named as parties defendant, and appellee Mildred Elbers was joined as an additional defendant on the ground that she allegedly owned or claimed some interest in the land involved in the suit. All parties defendant were duly served with process and upon their failure to answer or otherwise plead to the complaint, a decree pro confesso was entered against them on October 18, 1963. On December 18, 1963, the chancellor rendered a final decree in the cause which was in the customary form determining the amount of indebtedness owed plaintiff, ordering that such amount be paid and decreeing that in default thereof the land involved be sold by the clerk of the court on January 17, 1964. The amount found to be due plaintiff was not paid so the land was accordingly sold and on January 24, 1964, a certificate of title was issued appellant by the clerk.

On May 4, 1964, a writ of assistance was issued by the court commanding the sheriff of Volusia County to remove appellee from the property described in the final decree and purchased by appellant at the foreclosure sale, and to place plaintiff in possession thereof. The sheriff's return indicates that he was unable to serve the writ for the reason that after diligent search he was unable to locate appellee in Volusia County.

On June 16, 1964, appellee filed a motion purportedly predicated under and pursuant to Rule 1.38(b), 30 F.S.A. and Rule 3.9, 1954 Rules of Civil Procedure, 31 F.S.A. By this motion appellee represents that she does not now nor has she ever owned the real estate against which plaintiff sought and obtained foreclosure of its mortgage, and which is described in the final decree and certificate of title filed in the cause. Appellee does represent, however that she is the owner of another parcel of land in Volusia County described as Lot 29, Section 1 Hilltop Haven Subdivision, according to a map thereof recorded in Map Book 19, Page 78, of the Public Records of Volusia County. Appellee further represents that she permitted the mortgagors who were named as defendants in the foreclosure proceeding to occupy and reside upon the lot owned by her and described above; that these parties constructed a dwelling on her property and occupied it for a period of time before abandoning it; that appellee conveyed this land to her son who now is in truth and in fact the owner thereof; that the persons whom appellee permitted to occupy her property purported to encumber it by the mortgage which forms the basis of this proceeding, which mortgage is not only a forgery but is null, void and of no effect because the mortgagors named therein owned no interest in the land sought to be encumbered, and the mortgage was given without either the knowledge or consent of appellee as the true owner. Appellee further represents that appellant's counsel agreed with her attorney that further time would be allowed her within which to answer the complaint, but that in violation of this agreement appellant's counsel nevertheless took the decree pro confesso against her without further notice.

We pause to note that nowhere in appellee's motion does she explain how foreclosure of appellant's mortgage on the lands described therein and in which she claims no interest adversely affects the differently described lands allegedly owned by her. In addition to the fact that the alleged agreement between counsel for the parties for an extension of time within which appellee might plead to the complaint was unenforceable because not reduced to writing as required by the rules of procedure, ¹ the motion fails to specify the date on which such agreement was reached with relation to the date appellee was served with process on May 24, 1963, and the date of October 18, 1963, on which the decree pro confesso was entered. The purport of appellee's motion is that because of the foregoing she should now be permitted to answer the complaint, assert her defenses to the issues raised by the complaint, be given an opportunity to prove that appellant's mortgage is void and that foreclosure thereof should be denied. It is on the basis of this motion that on June 21, 1965, some eighteen months after rendition of the final decree, the chancellor entered his order setting aside the decree pro confesso, the final decree and all supplementary relief thereafter obtained by appellant in the cause. The order is silent as to the reasons or grounds upon which the...