Rubin v. Kapell

• Decision Date: 22 July 1958
• Docket Number: No. 58-36,58-36
• Citation: 105 So.2d 28
• Parties: I. H. RUBIN, a/k/a Isaac H. Rubin, Appellants, v. Edith KAPELL, Appellee.
• Court: Florida District Court of Appeals

Page 28

105 So.2d 28

I. H. RUBIN, a/k/a Isaac H. Rubin, Appellants, v. Edith KAPELL, Appellee.

No. 58-36.

District Court of Appeal of Florida, Third District.

July 22, 1958.

Rehearing Denied Oct. 6, 1958.

W. D. Bell, Miami, for appellants.

Claude Pepper Law Offices, Allen Clements, Jr., and Alfred Hopkins, Miami, for appellee.

ANDERSON, ROBERT H., Associate Judge.

This is an appeal from a final decree foreclosing two mortgages on real estate in Dade County, Florida. The first mortgage was given on April 21, 1936 by Ariel Realty Corporation and Abraham Wolfson to Federal Savings and Loan Association of Miami to secure a note for $14,500. The second mortgage was given by Abraham Wolfson to Frances K. Powell Corporation on December 28, 1939 to secure a note for $20,000. Both mortgages were assigned to Edith Kapell.

The important events involved in this litigation, stated chronologically, are as follows:

1936-April 21 Note and mortgage, Ariel Realty Corporation and Abraham Wolfson to Federal Savings and Loan Association of Miami, $14,500.00 (Exhibits 5 and 6)

1939-December 28 Warranty deed, Ariel Realty Corporation to Frances K. Powell Corporation (Exhibit B-1)

1939-December 28 Warranty deed, Frances K. Powell Corporation to Abraham Wolfson (Exhibit B-2)

1939-December 28 Note and mortgage, Abraham Wolfson to Frances K. Powell Corporation, $20,000.00 (Exhibits 1 and 2)

1942-October 7 Agreement between Abraham Wolfson and I. H. Rubin and wife (Exhibit B-6)

1947-March 13 Assignment of mortgage (Exhibits 5 and 6) Dade Federal Savings and Loan Association of Miami to Edith Kapell (Exhibit 4)

1952-October 16 Warranty deed, Abraham Wolfson to Spinoza Forum Foundation (Exhibit B-7)

1954-August 19 Assignment of mortgage (Exhibits 1 and 2) Frances K. and George C. Powell to Edith Kapell (Exhibit 9)

1955-December 15 Final decree in Rubin v. Wolfson, Fla., affirmed 98 So.2d 329 (Exhibit 11); see, also, Fla., 52 So.2d 344

The appellants derived their title to the premises from a deed made pursuant to a decree of the Circuit Court of Dade County in a suit brought by them against Abraham Wolfson. By this decree the defendant Wolfson was specifically required to perform a contract between the parties dated October 7, 1942. This decree provided, inter alia:

'21. The defendant, Abraham Wolfson, is ordered to make a deed to the plaintiffs, Jennie Rubin and I. H. Rubin, as specified hereinabove, and to make and deliver said deed forthwith and without any undue delay. The deed will be plain in form, not stating any warranty or condition, but since the property is encumbered by the mortgages as described above, the transfer will be subject to the liens of said mortgages as a matter of law.' (Italics supplied.)

It was affirmed by the Supreme Court. Rubin v. Wolfson, Fla.1957, 98 So.2d 329.

It will be observed that the agreement that was the subject of the decree for specific performance was made after the execution of the mortgages from Ariel Realty Corporation and Wolfson to Federal Savings and Loan Association and from Wolfson to Frances K. Powell Corporation.

The Chancellor in the case at bar found for the plaintiff-appellee. He decreed that there were certain sums as principal, interest, taxes, insurance and repairs, as well as costs, due on both mortgages, that the plaintiff had a lien upon the property superior in dignity to any title of the defendants, that the sums so decreed were directed to be paid by a fixed date, in default of which the property would be sold by the Clerk, and the defendants and all persons claiming under them were foreclosed of all claim of any kind to the property.

The defendants appealed.

The first point involved on appeal is that the plaintiff's assignor was a foreign corporation which had never complied with Chapter 613, Fla.Stat., F.S.A. The specific statute invoked is 613.04. It provides:

'613.04 Can not maintain action until provisions complied with.-The failure of any such foreign corporation to comply with the provisions of this chapter shall not affect the validity of any contract with such foreign corporation, but no action shall be maintained or recovery had in any of the courts of this state by any such corporation, or its successors or assigns, so long as such foreign corporation fails to comply with the provisions of this chapter.'

This section has been held by the Supreme Court of Florida not to apply to single transactions nor to the collection by a foreign corporation of debts due it for goods sold or otherwise contracted, or its action in adjusting or compromising such debts or acceptance within the state of evidence of such debts or of security therefor. Crockin v. Boston Store of Ft. Myers, 137 Fla. 853, 188 So. 853. This is conclusive of the point. It will be observed that the statute provides that it shall not affect the validity of any contract of such foreign corporation, but no action shall be maintained on it as long as it fails to comply with its provisions. Further, in view of the fact that it is alleged and admitted that the Frances K. Powell Corporation has been dissolved, it is difficult to see how it could ever comply with the statute even if it were otherwise applicable.

The next point involved is based upon the failure of the Chancellor to require the Ariel Realty Corporation to be made a party to the suit. This corporation likewise has been dissolved. It appeared that it had deeded its interest in the land to Frances K. Powell Corporation. In the case of Dennis v. Ivey, 134 Fla. 181, 183 So. 624, the Supreme Court of Florida held that when mortgagors have conveyed all their rights and interest in the mortgaged property to other parties such mortgagors are neither necessary nor proper parties to a suit to foreclose unless a deficiency decree is sought. Now it is true that a deficiency decree may be granted under a prayer for general relief, and under Rule 1.8(b), F.R.C.P., 30 F.S.A., a complaint is considered to pray for general relief, but it does not follow that such a complaint may be held to authorize a deficiency decree as against one not a party to the suit, especially where it is a dissolved corporation. It is also true that under Section 608.30, Fla.Stat., F.S.A., a suit may be maintained against the remaining members of the board of directors, but it by no means follows that a deficiency decree is authorized...