River Holding Co. v. Nickel

• Decision Date: 16 December 1952
• Citation: 62 So.2d 702
• Parties: RIVER HOLDING CO. v. NICKEL et ux.
• Court: Florida Supreme Court

Page 702

62 So.2d 702

RIVER HOLDING CO. v. NICKEL et ux.

Supreme Court of Florida, Special Division B.

Dec. 16, 1952.

Rehearing Denied Jan. 8, 1953.

Clyde A. Epperson, Miami, for appellant.

O. B. White and E. S. Corlett, III, Miami, for appellees.

DREW, Justice.

This is an appeal from a final decree foreclosing a second mortgage on land in Dade County. The appellant here, River Holding Company, was the defendant below.

The note secured by the mortgage foreclosed was for the sum of $25,000, was dated December 18, 1950, was payable in monthly installments of $200, plus 5% interest beginning January 15, 1951. Principal and interest were payable at Little River Bank & Trust Company, 8017 N.E. 2nd Avenue, Miami, Florida. The original mortgage and note were executed by Thomas J. Woolley and his wife, Inez Woolley, and contained a thirty day grace clause.

On December 31, 1951, appellant River Holding Company consummated the purchase of the real property encumbered by the foregoing mortgage and as a part of the transaction assumed a first mortgage and the balance due on the subject mortgage. At the time the transaction was closed the $200 payment which became due December 15, 1951, had not been paid and such amount was included in the balance which was assumed by the appellant.

The appellant's president testified that he was under the impression--as was his lawyer--that no further payment was due on the second mortgage until January 15th and that such impression was partially mortgage and note were executed by of the bank where the note was payable and where it was kept until withdrawn by appellees January 22nd he was told there was a balance due of $22,800 but no mention was made of the fact that there were any past due payments. Parenthetically, it should be noted here that the figure given appellant of $22,800 indicated clearly that only eleven payments had been made and that one was overdue.

While there are conflicts in the evidence as to just exactly what did happen after the transaction was closed and appellant acquired title, it is clear that both the appellees and appellant were somewhat confused by the change of ownership in the land. Mr. Woolley, the original mortgagor, appellant's vendor, had been making payments to the bank but had moved and changed his address and testified that he did not receive the monthly notice and did not have it when the appellant's president made inquiry concerning the exact amount of the January 15th payment and that there were visits to the bank to find out. There is no doubt that the appellant did go to the bank shortly after January 22nd to pay the note and was told by the bank officials that it had been withdrawn.

Upon learning that the note was withdrawn there is testimony that the appellant's president learned that appellees were living in West Palm Beach and, while there is some conflict as to the exact hour that the tender took place, there is no question that the appellant's president went to West Palm Beach with Mr. Woolley, his vendor, and while there actually tendered payment of all sums due prior to the time the suit to foreclose was actually commenced or the appellant had actual notice that appellees had exercised their option to declare the entire amount due. Appellant's president and Mr....