Robertson v. Robertson

• Decision Date: 14 October 1952
• Citation: 61 So.2d 499
• Parties: ROBERTSON v. ROBERTSON et al.
• Court: Florida Supreme Court

Page 499

61 So.2d 499

ROBERTSON v. ROBERTSON et al.

Supreme Court of Florida, en Banc.

Oct. 14, 1952.

Robert C. Lane and Curtiss B. Hamilton, Miami, for appellant.

Marx M. Faber, Miami, for appellees.

ROBERTS, Justice.

This is an appeal from a final decree dismissing the appellant's bill of complaint in proceedings instituted by him in the court below for a declaratory decree, an injunction, and other relief, which suit had for its main purpose the cancellation of certain mortgages held by the appellees Tinter and Porch against the property of the appellant. For a proper consideration of the questions presented on this appeal, it is necessary to set forth in some detail the facts and circumstances culminating in the litigation with which we are here concerned.

The appellant was, on October 13, 1950, the owner of certain property in Dade County, Florida. On that date, his sister, Sarah I. Robertson, forged his name to a deed purporting to convey the property to Sarah I. Robertson. Thereafter, on October 26, 1950, Sarah executed a mortgage on the property to one Homer Kapua to secure a note in the amount of $8,500, which mortgage was assigned by Kapua a few days later to the appellees Tinter for $6,900. Thereafter, on November 7, 1950, Sarah executed a second mortgage on the property to Kapua to secure a note in the amount of $2,000, which mortgage Kapua assigned to the appellees Porch on November 10, for $1,600. All of these transactions were duly recorded in the public records of Dade County, Florida. It should also be here noted that the appellant had himself executed a mortgage on the property some years back to one Perlman, of which there remained due and unpaid $2,000 at the time the Tinters were assigned the first Kapua mortgage, and which Perlman mortgage was paid off out of the $6,900 paid by the Tinters to Kapua.

It appears that Sarah I. Robertson was at the time of the transactions noted above an employee of the City of Miami, and that she had misappropriated certain funds of the city. Some time prior to January 19, 1951, the city discovered the shortage in Sarah's accounts; and, with disclosure imminent, it was decided to disclose to the appellant the fact of the forged deed and mortgages executed by her. At Sarah's request, Kapua made known these facts to the appellant on January 19, 1951. Kapua and the appellant went immediately, on that same day, to the office of the attorney who had represented the Tinters in the mortgage-assignment transaction, and disclosed the fact of the forgery to him. It appears that, in the interest of his clients, the Tinters, this attorney suggested that the appellant execute another conveyance of the property to Sarah, but that, according to the testimony of this attorney, the appellant said that this would not be necessary, as he recognized the deed from himself to Sarah as his own, and that he 'didn't want her to get into any more difficulty than she is now in.' A deed was then prepared re-conveying the property from Sarah to the appellant and was executed by Sarah. This deed contained a recital that said conveyance was made 'subject to existing mortgages of record which the grantee herein assumes and agrees to pay,' but was not signed by the appellant.

Thereafter, the appellant made several attempts to obtain re-financing of the mortgages executed by Sarah, but was unable to do so. Kapua had made two payments on the Tinter mortgage and three or four on the Porch mortgage prior to the time that the fact of the forgery was disclosed to appellant, but the appellant made no payments on either of them.

On March 21, 1951, the Tinters filed a suit to foreclose their mortgage, naming as defendants Sarah Robertson, the Porches, and the appellant. The Porches suffered a decree pro confesso to be entered against them, and the appellant and Sarah Robertson, through their attorney, filed a joint answer which was purely formal and did not set up the defense of forgery. An affidavit of the amounts due the Tinters under the note and mortgage being foreclosed was filed by their attorney (not the same attorney as the one who represented them in the mortgage-assignment deal), and the cause was set down for final hearing on June 15, 1951. On that date, the appellant and Sarah filed a motion for leave to file an amended answer, alleging that the attorney previously representing them had withdrawn as counsel, that certain evidence not previously available had been furnished to their present attorney, and that 'they have a meritorious defense to interpose in this cause, and that this motion is not made for the purpose of delay.' This motion was denied by a notation thereon signed by the Circuit Judge as follows: 'Within Motion denied as unsufficient (sic) to warrant delay in proceedings and is denied.' Final decree was thereupon entered and Notice of Master's Sale to be held on August 6, 1951, was published.

Thereupon, this suit for a declaratory decree and other relief was filed by the appellant against Sarah Robertson, Homer Kapua, the Tinters and the Porches, setting forth the various transactions referred to above, alleging that Sarah had forged the conveyance to herself from the appellant, that the mortgages executed by her were void, and praying that such deed and mortgages be cancelled and that the court enjoin the Special Master's Sale of the property, as authorized by the final decree in the Tinter's mortgage foreclosure suit. The application for the injunction was denied (by a circuit judge other than the one who had entered the final decree in the mortgage foreclosure suit) on the ground that 'this situation can be considered by the court at the time of the application for an order confirming said Master's Sale.'

The property was sold at the Master's Sale to the Tinters for the sum of $9,621, and a deficiency decree in the amount of $56.91 was entered against the appellant and Sarah. The Master filed his Report of Sale, and the appellant then filed his 'Objections to Master's Report of Sale and to Confirmation of Master's Sale,' in which he alleged the pendency of the instant suit, attached a copy of the bill of complaint therein, and averred that the sale should not be confirmed until after the issues as to the validity of the deed and mortgages were determined in such suit. No order on such objections appears in the record; the court did, however, enter its order confirming the Master's Sale on September 25, 1951, and the appellant appealed from such order and the final decree to this court, assigning as error the orders of the lower court denying appellant's motion for leave to amend his answer, and overruling his 'Objections to the Master's Report of Sale, and to Confirmation of Master's Sale.' The action of the lower court in these respects was affirmed by this court, Robertson v. Tinter, Fla., 57 So.2d 460, on February 22, 1952, rehearing denied March 25, 1952.

In the meantime, answers had been filed in the instant suit on behalf of the defendants, appellees here, and the cause had proceeded to trial. The appellees Tinter in their answer, as affirmative defenses, alleged that the appellant was 'estopped in law and in fact' to maintain the action in that the appellant 'consented and acquiesced' to the Tinters' paying off the Perlman mortgage and thereafter made no further payments to the Perlmans; and, also, that the appellant 'consented and acquiesced' to the mortgage transaction complained of and was guilty of laches 'in that the situation existed from October, 1950 to the time of the institution of this suit without any action by the plaintiff, with full knowledge all during that time of the transaction complained of.' It was also alleged that the appellant was further estopped in law and in fact by reason of the fact that he accepted the January 21, 1951, deed from Sarah to himself 'subject to existing mortgages of record, which he assumed and agreed to pay, as recited in said deed;' and that the Tinters' mortgage 'was of record a long time prior to the execution of this deed and the plaintiff knew or should have known of the transaction of which he now complains.'

The cause went to trial on the issues made by the Tinters' answer, the other defendants setting up no affirmative defenses. At the trial, the testimony of the witnesses brought out the facts and circumstances surrounding the transactions heretofore related. The lower court held that the appellant 'both by estoppel and res adjudicata, is precluded from now cancelling the mortgages held by defendants Tinter and Porch,' and dismissed the appellant's bill. It is this final decree of dismissal which we here review.

At the outset, it should be noted that the lower court erred in holding that the question of the validity of such mortgages is res judicata by virtue of the final decree in the mortgage foreclosure suit. The instant suit is based on an entirely different cause of action, so that the principles of res judicata are not applicable; and the question was not litigated on the mortgage foreclosure suit, so that 'estoppel by judgment' does not come into the picture. See Gordon v. Gordon, Fla., 59 So.2d 40, 43, wherein the principles of law relating to 'res judicata' and 'estoppel by judgment' are clearly and concisely set forth.

Moreover, we have noted in the brief filed in this court by counsel for the appellees Tinter in the appeal on the mortgage foreclosure suit, in opposition to appellant's contention that he should have been allowed to amend his answer therein to set up the defense of forgery, the following statements: 'The foreclosure proceedings have been completed, the sale had and confirmed. Appellant had his day in court. His new action [the instant suit] sets up all the equities he could assert in the foreclosure action. If he is successful in his new suit then he will have received all of the relief to which he is entitled and for which he is praying. If he is unsuccessful...