Neal v. Bradenton Production Credit Ass'n

Citation200 So. 845,146 Fla. 208
CourtUnited States State Supreme Court of Florida
Decision Date21 February 1941
PartiesNEAL 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.

OPINION

BUFORD Justice.

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:

'Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining and the rents, issues and profits thereof.
'The provisions, terms, covenants, conditions, obligations, powers and other contents set forth in Section A through C, except Section B-11, in that Blank or Master Form of Mortgage No. 1 of Bradenton Production Credit Association, recorded in the office of the Clerk of DeSoto County, Florida, in Mortgage Book 59, page 410, are hereby incorporated by reference, and made a part of this instrument as if set forth herein in extenso. (Receipt of a copy of said Master Form is hereby acknowledged by Borrower).'

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.

'15. Plaintiff says that the security it has for its mortgage aforesaid, is inadequate to pay the two prior mortgages against the real property involved in this foreclosure action and the mortgage herein being sought to be foreclosed; that the mortgagor has delivered up the real property covered by its mortgage to a junior lien holder or creditor, Welles Fruit & Live Stock Company, a corporation, and that mortgagor is out of control of the same; that said Welles Fruit & Live Stock Company claims a lien upon the mortgage security which is junior to that of plaintiff, but that said Welles Fruit & Live Stock Company is going to and will appropriate the crop of citrus fruit upon the grove to the payment of its lien, which is junior to the lien of plaintiff unless prevented from so doing by the appointment of a receiver by this Court to take charge of and possession of the property involved in this litigation and the citrus grove; Plaintiff says that if said citrus crop is allowed to be removed from the property, the value of the property will be further depreciated, and that it is necessary and essential to prevent the security from being further depreciated by preserving the status quo by the appointment of a receiver, for otherwise a valuable part of this security would be dissipated while the debt would be allowed to be increased and the issues and profits from the property being applied to a junior lien holder.'

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...

To continue reading

Request your trial
2 cases
  • Southwest Georgia Production Credit Ass'n v. James, 72270
    • United States
    • Georgia Court of Appeals
    • October 29, 1986
    ...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......
  • Flanagan v. Rakiewicz
    • United States
    • Florida Supreme Court
    • February 21, 1941

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT