Waldock v. Iba
| Citation | 114 Fla. 786,153 So. 915 |
| Parties | WALDOCK et ux. v. IBA. |
| Decision Date | 07 March 1934 |
| Court | Florida Supreme Court |
On rehearing.
Original opinion and adhered to.
For former opinion, see 150 So. 231, to which rehearing was granted in 150 So. 803.
BROWN J., dissenting. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.
Knight Pace & Paine, of Miami, for appellants.
L. J Cushman, of Miami, for appellee.
This case is before us for consideration after argument and submission of briefs on motion for rehearing granted after opinion and judgment was filed herein on August 1, 1933.
After further careful consideration, we have been unable to find any facts or conditions in this case by which it may be differentiated from the case of Murray v. Newsom, as Liquidator (Fla.) opinion filed June 27, 1933, reported 149 So. 387.
Appellee contends that because at the time the mortgagors, Harrod and wife, executed the mortgage to Iba there was outstanding a mortgage in favor of Waldock which Harrod had agreed and assumed to pay, which assumption constituted a part of the purchase price which Harrod and wife agreed to pay for the property and they did not pay, but allowed that mortgage to be foreclosed and afterwards repurchased the property from the mortgagee, Waldock, who was purchaser at the foreclosure sale, the title under such repurchase from Waldock inured to the benefit of Iba and was subject to his mortgage. This contention is made, although the land was reconveyed by Waldock to Harrod and wife burdened with the purchase-money mortgage which was later satisfied by reconveyance of the land by Harrod and wife to Waldock.
Appellee further contends that his position is fortified by reason of the fact that his mortgage contained the following warranty clause:
'And the said mortgagors do hereby fully warrant the title to the said land and will defend the same against the lawful claims of all persons whomsoever.'
That this warranty required the mortgagors to protect and defend the title to the premises as conveyed in the mortgage to Iba against the lawful claims of all persons whomsoever and that included the claim of Waldock upon his mortgage, which at the time was an outstanding incumbrance or interest in the land. We think this is not tenable.
A mortgage does not create an interest in land. It is a chose in action which creates a lien on land. But, if it...
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In re Thymewood Apartments, Ltd.
...effect that a mortgage does not create an interest in land, but rather a chose in action creating a lien on land. Waldock v. Iba, 114 Fla. 786, 153 So. 915, 915-16 (1934); see also Hemphill v. Nelson, 95 Fla. 498, 116 So. 498 (1928). Under the statutory scheme as it once existed, a mortgage......
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Shavers v. Duval County
...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 co......
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Martyn v. First Federal Sav. & Loan Ass'n of West Palm Beach
...1) A mortgage is only a lien. Hemphill v. Nelson, 1928, 95 Fla. 498, 116 So. 498; Waldock v. Iba, 1934, 114 Fla. 786, 150 So. 231, 803, 153 So. 915; Walker v. Heege, 1920, 78 Fla. 667, 83 So. 605 and Jordan v. Sayre, 1892, 29 Fla. 100, 10 So. 823. 2) A mortgagee has no right to possession, ......
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Lafferty v. Detwiler
...upon two former decisions of this court, Murray v. Newsom, 111 Fla. 193, 149 So. 387, and Waldock v. Iba, 114 Fla. 786, 150 So. 231, 153 So. 915, as affording grounds for the reversal of the final decree in this case. The headnote in Murray v. Newsom reads as follows: 'Where junior mortgage......