Treb Trading Co. v. Green

• Decision Date: 29 June 1931
• Citation: 102 Fla. 238,135 So. 510
• Parties: TREB TRADING CO. v. GREEN et al.
• Court: Florida Supreme Court

135 So. 510

102 Fla. 238

TREB TRADING CO. v. GREEN et al.

Florida Supreme Court, Division B.

June 29, 1931

Suit by the Treb Trading Company against Carl Green and others. From an order sustaining a demurrer to and dismissing the bill of complaint, plaintiff appeals.

Affirmed. Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

Ward &amp Marshall, of Miami, for appellant.

Semple & Hirschman and Stapp, Gourley, Vining & Ward, all of Miami for appellees.

OPINION

DAVIS J.

This is an appeal from an order of the circuit court of Dade county sustaining a demurrer to and dismissing a bill of complaint brought to foreclose a mortgage.

The complainant claimed the right to foreclose its mortgage and to accelerate all payments provided under the mortgage and the notes secured thereby because of the nonpayment of certain taxes by the mortgagor, or parties on his behalf. The bill did not allege or show that there were any other defaults under the mortgage other than the nonpayment of certain taxes, nor does the bill allege that the complainant paid the taxes which were in default prior to the institution of the suit.

All of the defendants demurred for failure of the bill to show that the complainant paid the taxes before the institution of the suit, and the question presented here is whether the complainant, under the terms of the mortgage, without having first made payment of the delinquent taxes, may maintain a bill of foreclosure.

The mortgage contains, with the usual clauses of conveyance and defeasance, the following provisions pertinent to the question to be decided:

'* * * And the said mortgagors * * * covenant and agree: To pay all and singular the taxes, assessments, levies, liabilities, obligations, and incumbrances of every nature on said described property each and every, and if the same be not promptly paid the said mortgagee, his heirs, legal representatives or assigns, may at any time pay the same without waiving or affecting the option to foreclose or any right hereunder, and every payment so made shall bear interest from the date thereof at the rate of 10 per cent. per annum.

'If any of said sums of money herein referred to be not promptly and fully paid within thirty days next after the same severally become due and payable, or if each and every the stipulations, agreements, conditions and covenants of said promissory note and this deed, or either, are not fully performed, complied with and abided by, the said aggregate sum mentioned in said promissory note shall become due and payable forthwith or thereafter at the option of the Mortgagee, his heirs, legal representatives or assigns, as fully and completely as if the said aggregate sum of Six Thousand and No/100 ($6,000.00) dollars was originally stipulated to be paid on such day, anything in said promissory note or herein to the contrary notwithstanding.'

While the precise point in the case at bar has never been definitely decided by this court in any prior case, the trend of the Florida decisions is to hold that, when a mortgage is given to secure the payment of a principal sum at a given date some years in the future, with interest payable at stated times, and there are covenants to pay taxes, liens, insurance, etc., and there is a debt at the option of the mortgagee on the breach of any of the covenants, including the covenants to pay taxes, liens, insurance, etc., that the mortgagee may, upon breach of these covenants by the mortgagor, maintain his bill to foreclose the mortgage before the due date of the principal indebtedness to the extent of the entire amount which becomes immediately due the payable by the exercise of the option to take advantage of the acceleration clause in the mortgage. See Warren v. Creevey, 87 Fla. 46, 99 So. 247, 248.

In the last-mentioned case the rule was stated by Mr. Justice Ellis to be as follows: 'It is competent for the parties to agree that upon default in the payment of interest or the breach of any other condition by the mortgagors, the mortgagee shall have the option of declaring the principal debt to be due and proceed to foreclose for the entire sum due. It is unnecessary to cite authority in support of this generally recognized doctrine.'

The rule that the right to foreclose a mortgage providing for the payment of taxes and assessments will not accrue upon the mere failure of the mortgagor to pay them until the holder of the mortgage shall have paid off and discharged the assessments of taxes does not apply in a case where the mortgage by its terms expressly provides that the entire principal sum shall at the option of the mortgagee become due and payable and subject to foreclosure for the mortgagor's failure to pay taxes and assessments.

The parties to a mortgage or trust deed may not only stipulate for forfeiture in case of failure to pay interest promptly at the time agreed upon, but they may provide that, in case the mortgage fails within a time designated to pay the taxes and assessments levied against the property, the mortgage shall be...