Oakland Properties Corp. v. Hogan

• Decision Date: 23 June 1928
• Citation: 96 Fla. 40,117 So. 846
• Parties: OAKLAND PROPERTIES CORPORATION v. HOGAN et al.
• Court: Florida Supreme Court

117 So. 846

96 Fla. 40

OAKLAND PROPERTIES CORPORATION v. HOGAN et al.

Florida Supreme Court

June 23, 1928

Suit by the Oakland Properties Corporation against J. J. Hogan and another. Decree granting a severance to defendant named, and dismissing the bill, and complainant appeals.

Affirmed in part, and in part reversed.

See also, 117 So. 849, 850.

Syllabus by the Court

SYLLABUS

Period of time for taking of testimony is wholly within discretion of chancellor. Under the rule, as amended, 'the judge upon application of either party, or of his own motion, shall enter an order fixing the time within which the testimony of the parties shall be taken.' The period of time allowed for the taking of such testimony is wholly within the discretion of the chancellor.

Filing general replication does not affect law providing cause shall be deemed at issue on filing of answer, unless asserting set-off or counterclaim. The filing of a general replication to an answer, which does not set forth a counterclaim or set-off, does not affect the provision of the statute which specifically provides that the cause shall be deemed at issue upon the filing of the answer unless the answer asserts a set-off or counterclaim.

Reply is not necessary without special order, in case answer merely sets up new affirmative matter defensive in character. Under the statute, if the answer merely sets up new affirmative matter defensive in character, such as would be appropriate to an ordinary answer in equity, designed to defeat the purpose of the bill without asserting any set-off or counterclaim, no reply thereto shall be required without a special order from the court and the cause will be deemed at issue upon the filing of the answer.

Exceptions for insufficiency will not lie to answer to bill that is not essentially one for discovery, and waives answer under oath. The settled rule is that exceptions for insufficiency will not lie to an answer to a bill that is not essentially one for discovery and that expressly waives an answer under oath.

Defendant answering under oath is entitled in cause set down for hearing on bill and answer to benefits of his answer as evidence, notwithstanding waiver. Where a cause is set down for hearing on bill and answer only, a defendant who answers under oath is entitled to the benefits of his answer as evidence, notwithstanding a waiver of answer under oath in the bill of complaint.

Allegations of bill denied by answer must fail, unless sustained by proof. Where a cause is set down on bill and answer, and the answer is directly responsible to the allegations of the bill, and in denial thereof, the allegations of the bill must fall unless sustained by proof.

All persons materially interested in subject-matter of suit must be made parties plaintiff or defendant. The general rule in equity is that all persons materially interested, either legally or beneficially, in the subject-matter of a suit must be made parties either as complainants or defendants, so that a complete decree may be made binding upon all parties.

Court cannot properly adjudicate matters involved, when it appears necessary and indispensable parties have not been served or are not in some way before court. The court cannot properly adjudicate the matters involved in the suit, when it appears necessary and indispensable parties to the proceeding have not been served with process or not in some proper way actually or constructively before the court.

Rights and interests of necessary parties cannot be adjudicated when they are not properly before court. The rights and interests of necessary and indispensable parties cannot be adjudicated when they are not properly before the court.

Foreclosure proceeding, resulting in sale of property, without holder of legal title being before court, does not transfer title. A foreclosure proceeding, resulting in a final decree and a sale of the mortaged property, without the holder of the legal title being before the court, will not operate to transfer his title to the purchaser at said sale.

Owner of legal title of land covered by mortgage is necessary party to foreclosure sale. The owner of the legal title of land covered by a mortgage is a necessary party to a suit to foreclose the mortgage, and neither such owner nor the legal title is effected by a decree and sale in a suit to which he is not a party.

Appeal from Circuit Court, Broward County; Vincent C. Giblin, judge.

COUNSEL

Huber. Clements & Blackwell, of Miami, for appellant.

Hall, Johnson & English, of Ft. Lauderdale, for appellees.

OPINION

LONG Circuit Judge.

One October 27, 1927, appellant, Oakland Properties Corporation, filed its bill against J. J. Hogan and Middle River Development Company, appellees, seeking to reform a deed executed by Middle River Development Company to appellant in such manner and to such extent as would cause to same to convey the legal title to the lands described in paragraph II of the bill as follows:

East half (E. 1/2) of southwest quarter (S.W. 1/4) of southeast quarter (S.E. 1/4) of northwest quarter (N.W. 1/4), southeast quarter (S.E. 1/4) of southeast quarter (S.E. 1/4) of northwest quarter (N.W. 1/4), northeast quarter (N.E. 1/4) of southwest quarter (S.W. 1/4), east half (E. 1/2) of east half (E. 1/2) of northwest quarter (N.W. 1/4) of southwest quarter (S.W. 1/4), and north half (N. 1/2) of north half (N. 1/2) southeast quarter (S.E. 1/4) of southwest quarter (S.W. 1/4), of section 22, township 49, range 42 east, in Broward county, Florida, and containing 75 acres more or less.

The defendant in the lower court, Hogan, on November 7, 1927, filed his answer. No service of process was obtained upon his codefendant, Middle River Development Company. On the 5th day of January, 1928, the chancellor entered a decree upon the bill and answer, granting a severance as to the defendant Hogan, and dismissing the bill; the entry of which decree is the error assigned.

It is apparent from the record that on the 26th day of February, 1925, Hogan was the owner of the lands in controversy; that he sold to Gotham Realty Corporation and executed a deed thereto; that at the same time the purchaser paid a portion of the purchase price and executed its purchase-money mortgage covering the same property to Hogan to secure the sum of $15,000, that being the balance of the purchase price. Subsequently the lands were deeded by Gotham Realty Corporation, grantor, to Middle River Development Company, who on the 22d of April, 1926, executed a deed to Oakland Properties Corporation conveying the south half of southwest quarter of northwest quarter of southwest quarter, west half of southwest quarter of southwest quarter, and southeast quarter of southwest quarter, in section 22, township 49, range 42 east, in Broward county, Fla., which deed conveyed the title to 10 acres only of the lands included in the deed to Gotham Realty Corporation, and in the deed from Gotham Realty Corporation to Middle River Development Company.

On March 30, 1927, the mortgagee, Hogan, filed a bill to foreclose his mortgage, which resulted in a final decree, and in which suit Gotham Realty Corporation, Middle River Development Company, and Fab Holding Corporation were named as defendants. Hogan was the purchaser at the sale, and the sale confirmed October 8, 1927. Complainant in the suit now before the court, to wit, Oakland Properties Corporation, who then held the legal title to the 10 acres, to wit, north half (N. 1/2) of north half (N. 1/2) of southeast quarter (S.E. 1/4) of southwest quarter (S.W. 1/4), was not named as a defendant.

Subsequent to the filing of the answer of defendant Hogan, and after due notice to appellant, application was made to the court for an order fixing the time for the taking of testimony and for limiting the time in which said testimony should be taken, and on December 12, 1927, the chancellor entered an order directing the parties to the cause to appear before the court and submit their testimony. No testimony was submitted at this hearing, the complainant not being present, and, on December 24, 1927, defendant Hogan served notice that the cause would be presented for final hearing on bill and answer on the 5th day of January, 1928. During this time, and on the 29th day of December, 1927, after the time for taking testimony had expired, the appellant filed its motion to vacate the order limiting the time for taking testimony because at the time of the entry of said order the cause was not at issue.

Under the pleadings in this case, two separate and distinct issues are presented; the prayer of the bill seeking a reformation of the deed from Middle River Development Company, grantor, to the complainant, Oakland Properties Corporation, so as to convey the legal title to the lands described in paragraph II of the bill of complainant and to declare complainant entitled to the possession thereof.

That the decree of foreclosure in the cause in which J. J. Hogan was complainant and Gotham Realty Corporation, Middle River Development Company, and Fab Holding Corporation were defendants, be vacated, canceled, and annulled.

The Middle River Development Company, the codefendant of Hogan not having been served with the process of the...