O'Neal v. McElhiney

• Decision Date: 09 March 1965
• Docket Number: No. G-133,G-133
• Citation: 172 So.2d 492
• Parties: Eli O'NEAL and his wife, Irma Lee O'Neal, Appellants, v. Roger McELHINEY and his wife, Jane McElhiney, and Harold D. Ellzey et al., Appellees.
• Court: Florida District Court of Appeals

Page 492

172 So.2d 492

Eli O'NEAL and his wife, Irma Lee O'Neal, Appellants, v. Roger McELHINEY and his wife, Jane McElhiney, and Harold D. Ellzey et al., Appellees.

No. G-133.

District Court of Appeal of Florida, First District.

March 9, 1965.

Milbrath & Walkup, Ocala, for appellants.

Harry C. Dozier, Jr., Ocala, for appellees.

WIGGINTON, Judge.

Plaintiffs in foreclosure of a vendor's lien bring this appeal to review an order sustaining objections of defendant Harold D. Ellzey to confirmation of a judicial sale of the subject property held pursuant to the final decree, at which plaintiffs were the successful bidders. The order also directed a resale of the property. The sole question for determination is whether the chancellor abused his discretion in the premises.

Plaintiffs sold approximately 20 acres of land to Roger McElhiney by contract for deed dated July 31, 1964. The purchasers began constructing a residence thereon but abandoned the property before completing either the construction or their payments under the contract. Meantime, thirteen suppliers of materials and labor, including appellee Ellzey, filed claims of liens aggregating $8,147.35. Appellants' suit to foreclose the contract for deed joined these lienors as defendants, and all except one, against whom a decree pro confesso was entered, answered the complaint through their attorneys.

The case proceeded to final hearing and on August 14, 1964, a final decree was entered, finding that plaintiffs held a first lien on the land for the amount adjudged to be due for the unpaid balance of the contract for deed and in and about the suit, and held that the liens of the defendants were inferior thereto. It provides that in default of payment, the property should be sold at public outcry on October 26, 1964, and the proceeds applied on account of the decree and costs.

At the final hearing the defendant lienors answering the complaint were represented by counsel. When the court announced its findings and conclusions, the attorneys representing the defendants had a discussion with plaintiffs' attorney and expressed a desire on behalf of their clients to pay off and take over plaintiffs' claim and/or to purchase the property at the foreclosure sale. Plaintiffs' attorney informed them that plaintiffs did not intent to put any more money into the property, and at the sale would not bid in excess of the amount due them under the final decree; and further informed them that if prior to sale they would pay to plaintiffs the amount due under the decree, plaintiffs would assign their interest thereunder to the defendants or their nominee. Defendants selected John Montgomery Greene, Esquire, counsel for one of their number to act on behalf of all who desired to work toward that end. In order to afford defendants time in which to raise the money to pay plaintiffs' claim, it was agreed that the final decree set the sale for a later date than normal, and the same was fixed two months and twelve days after date of the decree.

The only party defendant appearing on this appeal is appellee Harold D. Ellzey. His attorney was present at the final hearing and participated in the above-related transactions. It is obvious, therefore, that plaintiffs were entitled to the benefits of the final decree according to its plain terms and conditions, and it is seen that no valid 'agreement' was entered into modifying their rights thereunder.

Within ten days prior to the sale date, plaintiffs' attorney on several occasions discussed the forthcoming sale with Mr. Greene, the attorney acting for all of the defendants. The latter prepared and delivered to plaintiffs' attorney a quitclaim deed and an assignment of plaintiffs' claim under the decree, naming himself therein as trustee, which documents were contemplated to be executed by plaintiffs and delivered prior to the sale in exchange for payment of the amount due plaintiffs under the decree. Plaintiffs executed the documents, and three days before the sale date their attorney contacted Mr. Greene and offered to deliver the executed deed and assignment in exchange for payment as aforesaid. Mr. Greene advised that all of the money due was not then available but that it would be prior to the sale scheduled for 11:00 a. m. on October 26, 1964. At approximately 10:00 a. m. on that date plaintiffs' attorney, having heard nothing further from Mr. Greene, contacted his law office and finding him absent, informed his personal secretary that it was necessary for the money to be paid to plaintiffs prior to the sale if the defendants wanted the deed and assignment delivered; and also advised the secretary that if the moneys due the plaintiffs were not so paid, he would buy the property in at the sale for plaintiffs' account. Plaintiffs' attorney made a second attempt by phone to contact Mr. Greene prior to the sale and again finding him absent, repeated the message to his secretary.

Plaintiffs' attorney then proceeded to the place of sale and when the time for the sale arrived, there appeared, among others, the said John Montgomery Greene, Esquire, and J. R. Black, Esquire, who together were attorneys of record for ten of the defendant lienors. Immediately prior to the sale the attorneys for defendants announced to plaintiffs' attorney that their parties had not been able to raise the necessary moneys with which to pay plaintiffs' claim under the decree and, therefore, would not undertake to bid the property in at the clerk's sale. Plaintiffs' attorney informed them that the sale would have to proceed according to the published notice, and that he would undertake to bid the property in for plaintiffs' account. Accordingly, plaintiffs' attorney bid the property in for plaintiffs at a bid price of $4,812.02.

Appellee Harold D. Ellzey, a defendant junior lienor, filed objections to confirmation of the sale, alleging, in substance: (1) that the sale was held pursuant to an agreement whereby (unnamed) 'participating defendants' were to purchase the subject property for the face amount of the final decree; (2) that defendant Ellzey deposited with his attorney (apparently his...