Wagner v. Roberts

• Decision Date: 26 September 1975
• Docket Number: No. 74--1278,74--1278
• Parties: William F. WAGNER and Ernestine Wagner, Appellants, v. Eston E. L. ROBERTS, as Administrator and Heir of Juanita McQuarter, Appellee.
• Court: Florida District Court of Appeals

Page 408

320 So.2d 408

William F. WAGNER and Ernestine Wagner, Appellants, v. Eston E. L. ROBERTS, as Administrator and Heir of Juanita McQuarter, Appellee.

No. 74--1278.

District Court of Appeal of Florida, Second District.

Sept. 26, 1975.

Rehearing Denied Oct. 29, 1975.

Allen R. Samuels, St. Petersburg, for appellants.

Horace E. Hill, Daytona Beach, for appellee.

GRIMES, Judge.

This is an appeal from a final judgment quieting the title of certain property in the plaintiff (Roberts). The original of this suit is reflected by the following chronology:

(1) On February 11, 1952, Cora Jones conveyed a certain lot to Juanita McQuarter by warranty deed.

(2) In November of 1952, Juanita McQuarter died leaving as her sole heirs, Roberts and his sister Blonde Eva Jones.

(3) On April 24, 1960, Cora Jones executed a mortgage on the property to Sunniland Development Corporation securing a $6,000 promissory note.

(4) On November 21, 1961, Sunniland Development Corporation assigned the mortgage to defendants (Wagners).

(5) On October 5, 1965, Cora Jones conveyed the property to Roberts and Blonde Eva Jones. This warranty deed provided that the grantees assumed the mortgage of April 24, 1960.

All of the instruments mentioned above were recorded shortly following the dates of their execution. On October 21, 1968, the Wagners filed a suit to foreclose the mortgage for default in payment of note. Defaults were taken against Roberts and Blonde Eva Jones and a final judgment of foreclosure was entered. At the foreclosure sale, the land was bought in by the Wagners.

On May 5, 1972, Roberts brought suit as heir of Juanita McQuarter and as administrator of her estate to set aside the judgment of foreclosure. After the taking of testimony, the court entered an order finding that the mortgage from Cora Jones to Sunniland was ineffective since the mortgagor had no title to the property at the time the mortgage was executed and further that the record did not demonstrate that diligent search and inquiry had been made in the foreclosure action to discover the residence of Roberts and Blonde Eva Jones. The plaintiff was allowed to amend the complaint to conform to the evidence by dropping his designation as administrator of the estate and adding as parties, Blonde Eva Jones and certain persons who had since purchased the property from the Wagners. Thereafter, Roberts filed an amended complaint in compliance with the court's order and the Wagners filed a general denial and affirmative defenses.

By the time another hearing was held, the circuit judge who had previously heard the case had retired and a new circuit judge presided. This judge refused to permit further testimony by any persons who were parties to the previous hearing and ultimately entered a final judgment confirming the findings set forth in the previous judge's order and quieting the title of the property in Roberts and against all of the defendants. ¹

While the evidence is susceptible to more than one conclusion, there is competent substantial evidence to support the finding that constructive service...