Shavers v. Duval County

• Decision Date: 11 June 1954
• Parties: SHAVERS et al. v. DUVAL COUNTY et al.
• Court: Florida Supreme Court

Page 684

73 So.2d 684

SHAVERS et al. v. DUVAL COUNTY et al.

Supreme Court of Florida, En Banc.

June 11, 1954.

Rehearing Denied July 16, 1954.

C. B. Peeler, Jacksonville, for Eddie L. Shavers.

John E. Teate, Jacksonville, for Annie M. Shavers.

Joseph M. Glickstein, Jacksonville, for Jacksonville Realty Investments, Inc.

Harvey Mabry, Jacksonville, for appellee.

SEBRING and MATHEWS, Justices.

This is an appeal from a judgment in a condemnation proceeding wherein a mortgagee who holds a mortgage on the property sought to be condemned was made a party defendant in the proceedings. The mortgage in question provides for the retirement of the mortgage debt and interest thereon in stated monthly installments. The mortgage does not contain a provision giving to the mortgagor the right to anticipate the installment payments or to discharge the debt other than in strict accordance with the terms of the note and mortgage.

The questions on the appeal are whether the mortgagee is entitled to an attorney's fee for filing his defense in the proceeding; and whether the mortgagee is entitled to be paid, from the amount of the jury award to the owner, the entire principal amount of the mortgage together with interest thereon to date, and also the full amount of all future interest agreed to be paid to the maturity date of the mortgage.

It is settled in this jurisdiction that attorney's fees cannot be taxed as costs in any cause unless provided for by contract or by statute. State ex rel. Royal Ins. Co. v. Barrs, 87 Fla. 168, 99 So. 668; Webb v. Scott, 129 Fla. 111, 176 So. 442; Ex parte Graham, 136 Fla. 20, 186 So. 202; Dorner v. Red Top Cab & Baggage Co., 160 Fla. 882, 37 So.2d 160; Phoenix Indemnity Co. v. Union Finance Co., Fla., 54 So.2d 188. The mortgagee concedes that it has no contract authorizing the recovery of attorney's fees and costs against the petitioners. It contends, however, that sections 73.11 and 73.12, Florida Statutes 1951, F.S.A., authorize an allowance of attorney's fees to a defendant mortgagee in a condemnation proceeding.

Section 73.11, Florida Statutes 1951, F.S.A., prescribes the form of verdict that shall be returned in a condemnation proceeding. It requires the verdict to contain: 'First, an accurate description of the property taken; second, the compensation to be made therefor, includings a reasonable attorney's fee for the defendant's attorney; and third, the amount of such compensation to which each owner is entitled, if sufficient facts are before the court to adjudicate the distribution of the proceeds.'

Section 73.12 prescribes the form of judgment that must be entered on a verdict in a condemnation proceeding. It provides: 'The judgment shall recite the verdict in full and shall be that the property therein described be appropriated to the petitioner in fee simple, or the particular right or estate in said property sought, be appropriated to the petitioner, upon the petitioner paying or securing by deposit of money the compensation found by the verdict of the jury. The court upon appropriate petition shall determine the rights of any mortgagees, judgment creditors and lienholders in respect to the compensation awarded to each owner by the verdict.'

The mortgagee maintains in respect to these sections of the statute that they, and particularly section 73.12, indicate that the Legislature intended that a mortgagee should be considered as much an owner of the property sought to be condemned as the owner of the fee simple title, and that to fail to award a mortgagee defendant a reasonable attorney's fee incurred in establishing his claim and otherwise defending the proceeding would cause the mortgagee to receive less than the full and just compensation which the Constitution requires be awarded an owner in a condemnation proceeding and thereby would deprive him of property without due process of law.

We find ourselves unable to agree that such was the intention of the Legislature.

Section 73.11, Florida Statutes 1951, F.S.A., deals only with the form of verdict to be returned in a condemnation proceeding. It lays down three requirements for a valid verdict. The first of these is that the verdict must contain an accurate description of the real property to be appropriated. See Sibley v. Volusia County, 147 Fla. 256, 2 So.2d 578. The second is that it must state the compensation to be awarded the owner or owners of said property; said compensation to be made up of the following items: (a) the fair value of the property irrespective of any benefit from any improvement proposed by the petitioner (Cameron Development Co. v. U. S., 5 Cir., 145 F.2d 209); (b) compensation to the owner or owners for any injury, damage or destruction to an established business of more than five years standing upon adjoining, adjacent or contiguous lands of the owner (section 73.10); and (c) a reasonable attorney's fee to counsel for the owner or owners for defending the proceeding. The third requirement is that the verdict shall apportion the aforementioned compensation among each of the owners, that is to say, among those who have a proprietary interest or estate in the property taken (see 18 Am.Jur. p. 872), if sufficient facts are before the court to show the respective interests or estates of each.

We think it plain that the phrase 'including a reasonable attorney's fee for the defendant's attorney', which appears in section 73.11 in respect to the second requirement of the verdict, pertains exclusively to the compensation to be awarded the owner or owners for the property taken, and is included in the awarded so that the owner or owners will be made whole, in conformance with the mandate of the Florida Constitution that 'No private property, nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner * * *.' Section 29, Article XVI, and section 12, Declaration of Rights, Constitution of Florida, F.S.A. Compare Dade County v. Brigham, Fla., 47 So.2d 602, 18 A.L.R.2d 1221. It has no application to a defendant mortgagee, whose rights by virtue of the verdict and judgment are transferred to the award made to the owner, Seaboard All-Florida R. Co. v. Leavitt, 105 Fla. 600, 141 So. 886, unless it can be said that the mortgage held by the mortgagee gives him a proprietary interest or estate in the land condemned.

That such is not the nature of a mortgage in this jurisdiction is firmly established by the decisions. Under our holdings, a mortgagee does not have an estate or interest in mortgaged lands, by virtue of his mortgage, but is merely the owner of a chose in action creating a lien on the property. Evins v. Gainesville National Bank, 80 Fla. 84, 85 So. 659; Waldock v. Iba, 114 Fla. 786, 150 So. 231, 803, 153 So. 915. Therefore, whatever the rule may be elsewhere, we think it clear that under our condemnation statutes (which from their nature require a strict construction: Florida Cent. & P. R. Co. v. Bear, 43 Fla. 319, 31 So. 287), a mortgagee of lands sought to be condemned cannot be held to be an 'owner' and hence entitled to an attorney's fee to be paid by the petitioner, but must be deemed, in this regard, to fall in the class with judgment creditors and other lienholders, as to whom no attorneys' fees are allowable.

As to section 73.12, Florida Statutes 1951, F.S.A., upon which the appellant also relies, we fail to see its application to the point in issue. While it does provide that a mortgagee, judgment creditor or other lienholder, upon appropriate petition being filed, may have an adjudication of his claim and a determination of his rights in respect to the compensation awarded to each owner of the property, we find nothing therein to indicate that either in a proceeding predicated upon such a petition, or in the main suit in which compensation is awarded the owner or owners for the property taken, an attorney's fee is allowable to such a lienholder. Section 73.12 is simply a provision by which the circuit court is given authority (after determination of the questions of value, title, and the validity of liens) to make an apportionment of the money in the registry of the court to owners and lienholders showing the right thereto. See Peeler v. Duval County, Fla., 66 So.2d 247.

The final question raised by the mortgagee goes to the propriety of the order entered by the trial court striking that portion of defendant's answer in which the claim was asserted for the allowance of interest on the mortgage beyond the date of the condemnation judgment. In this regard it is urged by the mortgagee that the mortgage note of which it is the owner specifically states that the note is secured by a mortgage and is subject to all of the covenants contained therein; that the mortgage and note do not contain a stipulation according to the maker the privilege of prepayment; that under the terms of their agreement the mortgagors contracted to pay the principal plus the interest according to the tenor and terms of the mortgage and note for the full period of the mortgage; and that to require the mortgagee to accept less than full interest up to the maturity date of the note and mortgage would amount to an impairment of the obligation of the contract in violation of the State and Federal Constitutions.

It appears to us that the appellant has raised this question prematurely. Section 73.12, Florida Statutes 1951, F.S.A., provides that the court upon appropriate petition shall determine the rights of mortgagees, judgment creditors and lienholders in respect to the compensation awarded to each owner by the verdict of the jury. We think this statute contemplates that issues raised by such petitioners concerning their rights to share in the award are to be decided and determined not in the main suit but at a later hearing. Under this construction of the statute, the matter which was stricken from the mortgagee's answer...