Travis Co. v. Mayes

• Citation: 36 So.2d 264,160 Fla. 375
• Parties: TRAVIS CO. v. MAYES et al.
• Decision Date: 13 July 1948
• Court: United States State Supreme Court of Florida

36 So.2d 264

160 Fla. 375

TRAVIS CO. v. MAYES et al.

Florida Supreme Court

July 13, 1948

Appeal from Circuit Court, Dade County; Ross Williams, Judge.

Louis Schwarzkopf, of Miami Beach, for appellant.

Price & Price, of Miami, for appellee.

TERRELL, Justice.

In January 1941 appellant filed its bill of complaint to foreclose a mortgage on Lot 4, Block 16, J. W. Erickson's Subdivision, Miami Florida. Appellee Anna Engler filed her answer and motion to dismiss, alleging that she had a tax deed to the property which gave her superior title to that of appellants. The motion to dismiss was denied by the chancellor which was on appeal affirmed by this court.

On going down of the mandate the answer was amended, testimony was taken and on final hearing the Master found that the mortgage and note were not barred by the 20 year Statute of Limitations, F.S.A § 95.11(1), and that appellee's tax deed was void on its face, that it was not admissible in evidence as color of title and that while the Statute of Limitations had not run against appellant's mortgage, the foreclosure suit was barred by laches. The Master further found that the mortgage account was not closed by the Dade County Security Company appellant's assignor, until January 14, 1931. Appellants and appellee filed exceptions to the Master's report. In his final decree the chancellor approved the Master's report, taxed all cost against appellants and dismissed the suit. This appeal is from the final decree.

Counsel are at variance as to what question we should answer. Most of the argument is directed to the point of when the Statute of Limitations begins to run and whether or not laches may be invoked in view of the Statute of Limitations. Stated another way we are concerned with the point of whether or not a default mortgage and note may be barred for laches before the Statute of Limitations runs or when it appears that the Statute of Limitations has not run against it.

The law is well settled that the Statute of Limitations begins to run against a mortgage at the time the right to foreclose accrues. Special Tax School District No. One, Orange County v Hillman, 131 Fla. 725, 179 So. 805; Bourne v. State Bank of Orlando and Trust Co., 106 Fla. 46, 142 So. 810; Nevitt v. Bacon, 32 Miss. 212, 66 Am.Dec. 609; Buss v. Kemp Lumber Co., 23 N.M. 567, 170 P. 54, L.R.A. 1918C, 1015; Wiltsie Mortgage Foreclosure, 3d Ed., Vol. 1, page 111. The rule is also settled that when a mortgage in terms declares the entire indebtedness due upon default of certain of its provisions or within a reasonable time thereafter, the Statute of Limitations begins to run immediately the default takes place or the time intervenes. Central Trust Co. v. Meridian Light & R. Co., 106 Miss. 431, 63 So. 575, 51 L.R.A.,N.S., 151; Id., Miss., 64 So. 216; Perkins v. Swain, 35 Idaho, 485, 207 P. 585, 34 A.L.R. 894; Miles v. Hamilton, 106 Kan. 804, 189 P. 926, 19 A.L.R. 276.

It is not disputed that the note and mortgage in question were executed February 3, 1916, and were made payable seven years after date of execution, or February 3, 1923. The present suit was instituted January 18, 1941, which appellants contend is well within the 20 year period of the Statute of Limitation. Appellees contend on the other hand that if no payment was made within three months after February 3, 1916, or by May 4th, following, the mortgage was in default, the Statute of Limitations commenced to run and on May 4, 1936, twenty years thereafter, the right of foreclosure was barred. This contention is predicated on the following provisions of the original mortgage:

'And whereas, it is agreed that time is an essential in this contract, and if default shall be made in any of the aforementioned payments for the term of three months, or if any of the agreements, covenants or conditions herein contained, shall be violated by said mortgagor, or either of them, then the whole sum secured hereby shall become due and payable and the company shall have the right to immediate foreclosure, with reasonable attorneys' fees, and such taxes, assessments and insurance premiums payable by grantor, but paid by grantee, * * *.'

In respect to the mortgagor's default and when the statute of limitations commenced to run the Master made the following finding being all the answer we make to this point.

'With the previous ledger page, or pages, missing, I am unable to find the condition of the mortgage with respect to default prior to that time (1928) * * * Neither am I able to find when the mortgage actually went into default.'

Since the Chancellor disposed of the case on the ground of laches, we will proceed to consideration of the point of whether or not laches may be invoked in view of the Statute of Limitations. Before considering this point it is not amiss to suggest that appellant contends that the acceleration provision is of no effect here because it was not invoked by the mortgagee. Appellant also contends that payments were made on the...