Parker v. Interstate Trust & Banking Co.

• Decision Date: 11 March 1932
• Docket Number: No. 6314.,6314.
• Citation: 56 F.2d 792
• Parties: PARKER et al. v. INTERSTATE TRUST & BANKING CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

56 F.2d 792 (1932)

PARKER et al. v. INTERSTATE TRUST & BANKING CO. et al.

No. 6314.

Circuit Court of Appeals, Fifth Circuit.

March 11, 1932.

Edwin T. Osteen, of West Palm Beach, Fla., for appellant.

Egbert Beall, Jos. D. Farish, F. T. Fancher, B. F. Paty, Chas. H. Warwick, Jr., R. T. Boozer, and J. Stockton Bryan, all of West Palm Beach, Fla., for appellees.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

The Interstate Trust & Banking Company brought its bill against Parker, the appellant, and other defendants to foreclose on lot No. 5, block 1 of West Palm Beach, an unpaid balance on a past-due mortgage. The bill alleged that Kline, one of the defendants, had in a deed which conveyed the lot to him assumed payment of this indebtedness; that Kline had conveyed one-half of the lot to Parker, who in the deed had assumed the entire indebtedness against the lot. That Kline and Parker had together deeded the lot to the defendant Fein, who had in turn assumed the indebtedness. The bill concluded with a prayer for foreclosure and sale, and for a deficiency decree against the defendants named in the bill, including Parker. Parker alone contested the right of plaintiff to a deficiency judgment. He specifically answered that he had never assumed or agreed to pay or become indebted or obligated to pay the indebtedness sued on. Thereupon the parties having filed a stipulation agreeing that it be done, the court granting the motion of plaintiff that the cause be referred to a master, ordered that "J. W. Salisbury be and he is hereby appointed special master, and he is hereby ordered and directed to take the testimony of the parties thereto, reducing the same to writing and reporting the same to this Court with all convenient speed, together with his findings of law and of fact thereon. Further ordered that said Master be and he is hereby vested with all the usual and ordinary powers and the usual and ordinary authority vested in masters in similar cases."

At the hearings held under the order it was established, and the master so found, that Parker never knew of nor assented to the agreement of assumption which appears set out in the deed from Kline to him; that it was never intended nor agreed between them that Parker should become in any manner obligated on account of the lot in question, but that on the contrary it was distinctly understood that Parker was to be in no manner obligated on account thereof; that the agreement between him and Kline was that whereas they were on a deal to sell to Fein four lots which they jointly owned adjoining lot 5, and Kline had advised Parker that lot 5, which he had already bought, could be included in the deal, it was agreed that it should be so included without obligation of any kind on Parker on account of it, and that Parker, in joining in the deed, acted as a mere conduit to pass the title. It further established that there was no proof that Parker ever knew of or had his attention called to the assumption clause in the deed until plaintiff's demand in this suit, or that plaintiff or any one else had taken any action on the faith of that clause.

Upon this record the master found that Parker had never agreed to pay the debt sued on, and was not liable therefor, and recommended that no deficiency decree be allowed against him.

Plaintiff's sole exception to the report, "The report of the Master is contrary to the pleadings and the evidence, and the law applicable thereto" was by the district judge sustained. From the deficiency decree thereafter entered against Parker this appeal is prosecuted.

Appellant urges here that the judgment must be reversed (1) because the reference was by consent, and the master's findings conclusive; (2) because the undisputed facts established Parker's nonliability.

Upon the first point we are not disposed to extend the effect claimed for Kimberly v. Arms, 129 U. S. 512, 9 S. Ct. 355, 32 L. Ed. 764, cf. Davis v. Schwartz, 155 U. S. 631, 15 S. Ct. 237, 39 L. Ed. 289; Hattiesburg Lbr. Co. v. Herrick (C. C. A.) 212 F. 834, 835, that in a reference of a cause by consent instead of upon the order of the court, under ordinary chancery practice the findings of the master upon conflicting testimony are unassailable, to a case like this where the master, though the order was consented to was really the court's master by appointment, and not the parties' master by consent. Denver v. Denver Union Water Co., 246 U. S. 178, 38 S. Ct. 278, 62 L. Ed. 649. Even so, the findings of a master are entitled to great weight, and should not be disregarded unless clearly wrong (Paepcke v. Kirkman C. C. A. 55 F.(2d) 814), especially where testimony is taken orally before the master, and the judge acts only on the record. In re Slocum (C. C. A.) 22 F.(2d) 282, 285; In re Perel (D. C.) 51 F.(2d) 506; Baltic Cotton Co. v. U. S. A. (C. C. A.) 55 F.(2d) 568. In the state of this record, however, it is not important to appellant which view we take of the effect of the reference to the master, for under either view, and independently of the master's findings, the facts which are undisputed, or sustained by a great preponderance of evidence, compel the conclusion that Parker never contracted with Kline to assume the debt, and that therefore he is not liable to plaintiff, who in this suit...