Smith v. Metzler

• Decision Date: 23 February 1932
• Citation: Smith v. Metzler, 139 So. 823, 104 Fla. 315 (Fla. 1932)
• Parties: SMITH v. METZLER et al.
• Court: Florida Supreme Court

139 So. 823

104 Fla. 315

SMITH v. METZLER et al.

Florida Supreme Court, Division A.

February 23, 1932

Suit by J. A. Metzler and wife against Minnie I. Smith and others. From the decree rendered, the defendant named appeals.

Affirmed. Appeal from Circuit Court, Pinellas County; T Frank Hobson, judge.

COUNSEL

Wm. G King and Merle E. Rudy, both of St. Petersburg, for appellant.

Booth &amp Dickinson, of St. Petersburg, for appellees.

OPINION

PER CURIAM.

In this case Fred Smith and wife, in December, 1924, purchased a parcel of land from Metzler and wife, and assumed as a part of the purchase price the payment of a $12,000 mortgage held by one Bryant, and also made and executed to Metzler a second mortgage to secure the balance of the purchase price. The second mortgage contained, amongst other things, the following clause:

'It is expressly agreed by and between the parties hereto that this mortgage is a Second Mortgage, and is given subject to a First Mortgage of $12,000.00 in favor of George W Bryant. It is further agreed; If, in the event a renewal is secured of the first mortgage of $12,000.00 that the same shall remain a First Mortgage against the premises above described and that the indebtedness herein secured shall be Second, and subject to the First Mortgage of $12,000.00, as though the present mortgage had not been renewed. Intending by the foregoing that a new mortgage for $12,000.00 may be taken as such renewal.'

When the Bryant mortgage had been paid, probably in full but certainly down to $2,000, the Smiths, in April 1928 and about a month after Metzler had begun foreclosure proceedings, made a deal with Bryant and one Minnie I. Smith whereby they made a new mortgage to Bryant for $12,000. Bryant indorsed the notes without recourse and delivered them to Minnie I. Smith, together with an assignment of the new mortgage, and Minnie I. Smith delivered to Fred Smith and wife cash and securities in the sum of $12,000, or probably in the sum of $12,000 less $2,000. There is evidence to sustain either proposition in the record, and the chancellor evidently found the former proposition to have been established. The Metzlers filed suit to foreclose their second mortgage, and, by amendment, included as defendants all necessary parties and the parties now before this court. Fred Smith Smith. It appears that Minnie I. Smith is Smith. It appears that Minnie I. Smith is not related to Fred Smith...