Neves v. Flannery

• Decision Date: 02 August 1933
• Parties: NEVES v. FLANNERY et al.
• Court: Florida Supreme Court

149 So. 618

111 Fla. 608

NEVES v. FLANNERY et al.

Florida Supreme Court, Division B.

August 2, 1933

Bill by J. R. Neves, suing for the use of the Union Savings Bank, a corporation, against Edward J. Flannery and others. Decrees pro confesso were taken against all defendants, except the first National Bank of Panama City, which filed a cross-bill. Decree for defendant, and complainant appeals.

Reversed and remanded. Appeal from Circuit Court, Bay County; Ira A. Hutchinson, judge.

COUNSEL

A. M Douglas, of Panama City, and W. F. Phillips, of Port Angeles Wash., for appellant.

C. R Mathis and J. M. Sapp, both of Panama City, for appellees.

OPINION

BROWN Justice.

Appellant as complainant in the court below, filed his original and amended bill of complaint, seeking to foreclose the mortgage exhibited therein. This mortgage was executed by Edward J. Flannery to J. R. Neves on October 6, 1925, to secure the payment of a promissory note for $3,000, due and payable October 6, 1926. The mortgage described the lands covered by it as follows:

'Lots numbered thirteen and fourteen (13 & 14) of Block Three (3) according to Harmon's platting of South Panama City, Florida, as per plat on file in the office of the Clerk of the Circuit Court of Bay County, Florida, at Panama City. Same being in and a part of the SE 1/4 of the SE 1/4 of Section 9, Township 4 South, Range 14 West;'

-- and was duly executed and recorded in the office of the clerk of the circuit court of Bay county, on the 13th day of October, 1925 The bill of complaint alleged that one of the defendants, appellee here, the First National Bank of Panama City, held a mortgage on the premises described in complainant's mortgage, dated March 21, 1927, and recorded March 22, 1927, which subsequent mortgage was subject and inferior to the lien of complainant's mortgage.

Decrees pro confesso were taken against the other defendants, but appellee First National Bank appeared and filed its answer to the original bill, and its answer, cross-bill, and demurrer and supplemental answer to the amended bill of complaint.

Such answer denied that appellee, at the time it took its mortgage, had actual knowledge or constructive notice that appellant had and held a mortgage which covered or embraced any lands described in that certain mortgage of appellee above referred to, and that the description given in the mortgage of appellant was not sufficient to charge appellee First National Bank with notice of the lien of appellant's mortgage. Appellee denied that appellant had or held any lien against the lands described in appellee's mortgage, which mortgage recited that on the 21st day of March, 1927, E. A. O'Donnell and wife, being indebted to the First National Bank of Panama City in the sum of $5,000, as evidenced by their promissory note in like amount due June 21, 1927, made and executed the same to secure the payment of said note. This mortgage correctly described the property mortgaged as follows:

'Lots numbered thirteen (13) and fourteen (14) in Block number three (3) of the T. H. Harmon plat of South Panama City, Florida, as per plat on file in the office of the Clerk of the Circuit Court, Panama City, Florida, said property being in and a part of SW 1/4 of the SW 1/4 of Section nine (9), Township four (4) South, Range fourteen (14) West.'

--and was duly executed and recorded in the office of the clerk of the circuit court of Bay county on the 22d day of March, 1927.

By cross-bill and claim of affirmative relief, appellee first National Bank sought foreclosure of its note and mortgage, claiming a first lien against the property.

Appellant filed exceptions to the answer of the First National Bank, demurring to the cross-bill, and the same was argued before the chancellor. The exceptions were denied and the demurrer overruled.

It does not appear that there was any denial of the allegations of the complainant's bill concerning the Harmon plat, and we deem that it is conceded that only one Harmon plat of Panama City, or any part of Panama City, had ever been filed in the office of the clerk of the circuit court of Bay county.

A special master was appointed and the testimony taken and reported.

It appears that at the time the First National Bank took its mortgage it had no actual notice or knowledge that appellant held or was claiming to hold a mortgage on the property upon which it took its mortgage, and that the complainant appears to have relied mainly upon the record of the mortgage from Flannery to Neves as constituting sufficient notice to the bank that said mortgage was a lien on the property upon which the bank took its mortgage.

It will be noted that the mortgage to the bank described certain lots 'of the T. H. Harmon plat of South Panama City, Florida,' whereas the Flannery-Neves mortgage described the same lots 'according to Harmon's platting of South Panama City, Frorida,' both mortgages following these references with the words, 'as per plat on file in the office of the Clerk of the Circuit Court,' the bank's mortgage adding, 'Panama City, Florida,' and the Neves mortgage adding, 'of Bay County, Florida, at Panama City.' As there was only one Harmon plat on file in said clerk's office, we think it clear that both mortgages referred to the same plat. This plat was dated March 18, 1914, and was entitled in large letters 'Plat Showing Property of T. H. Harmon, South-Panama City, Fla., being S.W. 1/4 of S.W. 1/4, Sec. 9, T. 4, R. 14W.' In the upper corner of the plat, under the word 'Note,' appears the following: 'This plat is specifically intended to show Nancy Harmon's platting of a portion of the S.W. 1/4 of the S.W. 1/4 of Section 9, Twp. 4 S., R. 14W., embracing Blocks 9 to 12 inclusive, and forming an addition to the original T. H. Harmon plat of South Panama City, which plat was filed Nov. 25, 1909, at Vernon, Washington County, Florida, and of which a copy is herewith given,' etc.

It thus appears that the only substantial difference between the descriptions contained in the two mortgages was that the later or bank mortgage correctly stated that the lots were in the 'S. W. 1/4 of the S.W. 1/4' of the section, whereas the earlier or Neves mortgage incorrectly stated that the lots were in the 'S. E. 1/4 of the S.E. 1/4' of the same section. Both descriptions, as we have seen, gave the same lot and block numbers and both referred to the same plat.

The final decree made and entered by its provisions adjudged that the record of the mortgage of appellant, with the description of property as therein contained, did not constitute and was not effective as constructive notice to appellee First National Bank that appellant had and held or claimed any prior mortgage or lien upon the property described in appellee's mortgage; and that the appellee First National Bank held a superior and prior lien upon the property described in its mortgage, and that the mortgage of appellant is a junior lien upon the property described in his mortgage.

The decree also, without any prayer for such relief, provided that the mortgage of appellant be reformed to read that the lots therein described are 'in the SW 1/4 of the SW 1/4 of Section 9, Township 4...