Peninsular Naval Stores Co. v. Cox

• Decision Date: 07 April 1909
• Citation: 49 So. 191,57 Fla. 505
• Parties: PENINSULAR NAVAL STORES CO. v. COX et al.
• Court: Florida Supreme Court

49 So. 191

57 Fla. 505

PENINSULAR NAVAL STORES CO. v. COX et al.

Florida Supreme Court

April 7, 1909

Headnotes Filed May 11, 1909.

In Banc. Appeal from Circuit Court, Hernando County; William S Bullock, Judge.

Bill by the Peninsular Naval Stores Company against William H. Cox and others. From an order making a certain person a party defendant and from another order refusing to direct a decree pro confesso against certain of the defendants, complainant appeals. Reversed.

Syllabus by the Court

SYLLABUS

When a mortgage foreclosure suit is pending to foreclose a mortgage on lands which are subject to the lien of a judgment entered subsequently to the execution and recordation of the mortgage, and where said lands are levied upon under said execution issued upon such judgment and advertised for sale and where before such sale a lis pendens notice of such mortgage foreclosure was filed and recorded, under the lis pendens notice all persons purchasing said lands at said execution sale, or of said judgment, upon which the execution issued, buy the lands subject to the rights of the mortgagee in the foreclosure proceedings, and such a purchaser has no right to be made a party defendant upon his own petition, in the foreclosure suit; nor has the purchaser of such judgment as is referred to, subsequent to the filing of the lis pendens notice, the right to be substituted as a party defendant in the litigation in lieu of the judgment creditor especially when it does not appear that either the complainant in the mortgage foreclosure suit or the judgment creditor defendant in said suit has consented to such substitution.

To entitle a party to file a bill in equity to remove or prevent a cloud upon the title to real estate, he must be the owner of either the legal or equitable title to said property, and under our statute (section 2495, Gen. St. 1906) a mortgagee is neither.

Where an order has been improperly made substituting an improper party defendant in a mortgage foreclosure suit for a proper party defendant, which order is not void, upon the reversal of said order it is proper, in the interest of justice, to allow the proper party defendant a reasonable opportunity to plead to or answer the bill.

COUNSEL

Davant & Davant, for appellant.

F. B Coogler, for appellees.

On the 23d of May, 1908, the appellant filed a bill in the circuit court of Hernando county to foreclose several mortgages theretofore executed to it by W. H. Cox and wife. The mortgages were given to secure certain notes, and in addition certain advances which were to be made by the appellant to said Cox in operating a turpentine business. Cox and wife and certain judgment creditors of Cox, viz., the firm of Frank & Co., E. A. Weil & Co., and W. E. Law, as sheriff of Hernando county, were made parties defendant to the bill. It is alleged that the judgment liens were subordinate to those of the mortgages. It appears from the certified copies of the mortgages made a part of the bill the mortgages were duly recorded. These embraced lands lying in Hernando and Sumter counties and certain leases and personal property. It is alleged in the bill that certain events had occurred which gave the appellant the right to foreclose its mortgages. At the time of filing the bill, the judgment creditors had caused executions to be issued and levied on certain of the lands covered by the mortgages in Hernando county, and notices of sale on the first Monday in June, 1908, by the sheriff were then running. The appellant prayed in its bill for an injunction against these sales on the ground that sales of the property under the executions would cloud appellant's title, embarrass and subject it to annoying and vexatious litigation, and that parties to the cause would be needlessly multiplied. The bill also prayed for a receiver, alleging that the property was being wasted and was not of sufficient value to pay what was due appellant. On the 29th of May, 1908, the applications for an injunction against the contemplated sales by the sheriff, and for a receiver, came on to be heard, on notice, before the circuit judge, who on that day made an order granting the application for a receivership and denying the application for an injunction. On the 1st of June, 1908, at 10:42 o'clock a. m. of said day, the appellant filed a lis pendens notice in the clerk's office of Hernando county, which the record shows was then and there recorded in the lis pendens docket. The notice is set out in the record and covers the lands embraced in the mortgages. On the 6th day of July, 1908, Weil & Co. and Frank & Co. entered their appearance in said cause, and on the 30th of July Frank & Co. and Weil & Co. filed their demurrer to the bill. These demurrers were overruled on the 1st of September, 1908, and these defendants were allowed until the 12th of September, 1908, to plead to or answer the bill. On the 3d of August, 1908, a decree pro confesso was duly entered against Cox and wife. On the 7th of September, 1908, L. B. Varn filed his application to be made a party defendant to the bill. His petition alleges: 'That since the filing of the bill W. E. Law, as sheriff of Hernando county, in and by virtue of an execution issued out of the circuit court in and for Suwannee county, Fla., in a cause therein pending wherein J. M. Frank, E. M. Frank, H. J. Frank and F. A. Weil, copartners doing business as Salem Naval Stores Company (1) did on the --- day of April, 1908, before the filing of bill of complaint herein, levy upon all the right, title, and interest of W. H. Cox in and to the lands hereinafter described, and on the 1st day of June, 1908, sell the same at public auction in the town of Brooksville, Fla., and that he (the said L. B. Varn) became the purchaser of said lands at said sale as shown by the sheriff's deed hereto attached.' The petition then describes the lands, being a part of those embraced in appellant's mortgages, or some of them. The petition also alleges: 'That sheriff W. E. Law, under and by virtue of certain executions issued out of the circuit court of Suwannee county, state of Florida, in a cause therein pending wherein J. M. Frank, E. M. Frank, H. J. Frank, and F. A. Weil, copartners, trading as Frank & Co., plaintiffs, and W. H. Cox and S. J. Jones, late partners trading as Salem Naval Stores Company were defendants, did on the --- day of April, 1908, levy on all the right, title, and interest of W. H. Cox in and to the lands hereinafter referred to, and on the 1st day of June sold said lands at public auction in front of the courthouse door in the town of Brooksville, Fla., and said lands were bid off to the plaintiffs named in said execution, to wit, Frank & Co., and that on the 23d day of July, 1908, said Frank & Co. assigned their bid and all the right thereunder to him, said L. B. Varn, and directed the sheriff of Hernando county aforesaid to execute deed to said L. B. Varn, which was done, and a copy of said deed is herewith filed.' The deed shows that the lands embraced therein were embraced in appellant's mortgages. The petition then alleges a judgment of the circuit court of Suwannee county in favor of E. A. Weil & Co. against W. H. Cox and S. J. Jones, partners under the style of Salem Naval Stores Company, an execution issued thereon, a levy thereunder by the sheriff of Hernando county on a part of the lands embraced in the mortgages of appellant, and a sale on the 1st of June, 1908, of said lands, which were bid off by Weil & Co., and that on the 24th of July, 1908, Weil & Co. assigned all the rights under said bid to Varn, who took a deed therefor from the sheriff. It is further alleged that on the 30th of June, 1908, Weil & Co. transferred and assigned all their rights, title, and interest in and to the said judgments to said L. B. Varn, which assignment was recorded in Hernando county. The petition further alleges by the said deeds and assignments L. B. Varn is now the owner of the rights, title, and interest which Weil & Co. and Frank & Co. had in and to the property herein referred, with the right to defend the same, and all of the property referred to is embraced in the foreclosure suit in this cause. The petitioner, Varn, then moves the court to be made defendant to said bill for the purpose of defending his rights as described, and for permission to file such pleading in defense of his rights as he may be advised. This petition was signed by L. B. Varn, but was not sworn to by him or any one else at the time it was acted on the 7th September, 1908. The sheriff's deed accompanied the ptition, but the alleged assignments of the judgments were not then shown in any way except by the unsworn allegation of the petition.

On the 7th of September, 1908, and without notice to the appellant, the court heard the petition of Varn, and entered the following order:

'In Hernando County Circuit Court, 5th Judicial Circuit of the State of Florida, In Chancery. Peninsular Naval Stores Company, a Corporation, etc., Complainants, v. W. H. Cox et al., Defendants. Foreclosure of Mortgage.

'Order.

'This cause coming on to be further heard on application of L. B. Varn to be made party defendant with authority to defend his interest herein, and it appearing to the satisfaction of the court that said L. B. Varn is interested in the subject-matter of said suit and should be allowed to come in and defend the same, it is therefore ordered and decreed that said L. B. Varn is made party defendant with authority to file answer of plea instead of E. A. Weil & Co. and Frank & Co. in the premises as he may be advised. Done at Chambers in Ocala, Florida, this the 7th day of September, 1908.

'W. S. Bullock, Judge.'

On the 11th of September, 1908, the said L. B. Varn filed an...