Neal v. Bradenton Production Credit Ass'n
Citation | 200 So. 845,146 Fla. 208 |
Court | United States State Supreme Court of Florida |
Decision Date | 21 February 1941 |
Parties | NEAL et ux. v. BRADENTON PRODUCTION CREDIT ASS'N. |
Rehearing Denied March 27, 1941.
Certiorari to Circuit Court, DeSoto County; W. T. Harrison, Judge.
Suit by the Bradenton Production Credit Association against W. A Neal and wife, and the Welles Fruit & Live Stock Company to foreclose a mortgage executed by W. A. Neal and wife and to have the interest of the Welles Fruit & Live Stock Company declared junior to that of the plaintiff, and for the appointment of a receiver. A receiver was appointed and thereafter the Welles Fruit & Live Stock Company filed a pettion praying the court to vacate and set aside that part of the order appointing the receiver, which authorized the receiver to take charge of and handle citrus fruit. The motion to discharge the receiver as to the citrus fruit was denied, and the Welles Fruit & Live Stock Company brings certiorari.
Certiorari denied.
COUNSEL Leitner & Leitner, of Arcadia, for petitioner.
M. A Rosin, of Arcadia, for respondent.
Bradenton Production Credit Association filed suit in the Circuit Court of DeSoto County to foreclose a mortgage executed in July 1938, to secure the payment of two thousand ($2,000) dollars due June 20th 1939. The mortgage pledged certain real estate described therein, certain personal property and '(1) All crops, fruit and other products planted, growing and to be planted, grown and raised, (during the current and five succeeding crop seasons and until said indebtedness is paid) upon the lands hereinabove described:'
It also contained the following clauses:
The blank or master form of mortgage No. 1 above referred to, inter alia, provides:
'21. That in the event of any breach or default of the terms, covenants, conditions or stipulations of this instrument or of the obligations secured hereby, or should the security hereof be diminished, of any of which Lender shall have notice, Lender, at its option, shall have all of the following rights:
'a. To decline to make further advances.
'b. To declare all of the indebtedness hereby secured immediately due and payable without notice to Borrower.
'c. To have immediate possession, use and enjoyment of the property hereby encumbered and to receive the rents, issues and profits thereof from the accrual of such right.
'd. And to foreclose the lien hereof. If such possession, use and enjoyment shall not be delivered to Lender, then, in that event, Borrower consents and agrees that a Receiver may be appointed (whether or not Borrower is insolvent) to take charge of the property hereby encumbered during the pendency of any such foreclosure proceedings, to receive the rents, issues and profits therefrom and to apply the same toward the retirement of the indebtedness hereby secured.
'Section C. Borrower further covenants, undertakes and agrees as follows:
'1. To plant, cultivate, fertilize, spray, harvest, pack and process with ordinary care and diligence, all of the crops hereby encumbered.
'2. That in the event of any breach or default whereby the right of foreclosure accrues, as aforesaid, Lender may, as a cumulative or concurrent remedy, sell the farm machinery and equipment, livestock and/or crops in being at public sale to the highest bidder for cash at the Court House in the County where said property or any part of it is located at the time of sale, after giving twenty days notice thereof, and the proceeds of such sale shall be applied first to the payment of the costs and expenses of such sale and then to the payment of the amount of principal, interest and attorneys' fees due upon said obligations and the remainder of the proceeds, if any, shall be paid to Borrower.'
By amendment filed on November 26, 1940, the plaintiff, inter alia, alleged:
'That it is advised and has reason to believe, and alleges upon information and belief that the hereinbefore mentioned agreement between W. A. Neal et ux and Welles Fruit & Live Stock Company, a corporation, for the benefit of DeSoto National Bank of Arcadia, has been canceled, but that said cancellation was not of record among the public records of DeSoto County, Florida, when this action was instituted.
'14. That it is informed and does believe that the defendant Welles Fruit & Live Stock Company, a corporation, claims some type of interest in and to the real property which is the subject matter of this litigation, and that it does so claim it under a written instrument which is not of record among the public records of DeSoto County, Florida; and Plaintiff says that said Welles Fruit & Live Stock Company, a corporation, have an interest in the subject matter of this litigation, junior to that of plaintiff.
It then alleged in effect that Welles Fruit & Live Stock Company had picked a substantial amount of the citrus fruit covered by the mortgage and removed the same from the grove, thereby impairing the security of the plaintiff's mortgage; that Neal had no other property in DeSoto County other than the property involved in the litigation and that plaintiff had been unable to find any other property which he could subject to the payment of the indebtedness...
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Southwest Georgia Production Credit Ass'n v. James, 72270
...a party, and where Southwest had not consented to such agreement and the waiver of its prior interest. See Neal v. Bradenton Production, etc., Assn., 146 Fla. 208, 200 S. 845 (1941). Compare Cash Crops Coop. v. Green Giant Co., 263 Wis. 353, 57 N.W.2d 376 (1953). See generally Continental A......
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