Wilmott v. Equitable Building & Loan Ass'n
| Decision Date | 06 January 1903 |
| Citation | 44 Fla. 815,33 So. 447 |
| Parties | WILMOTT et ux. v. EQUITABLE BUILDING & LOAN ASS'N. |
| Court | Florida Supreme Court |
Appeal from circuit court, Orange county; John D. Broome, Judge.
Bill by the Equitable Building & Loan Association against J. W Wilmott and Sophia E. Wilmott. Decree for complainant, and defendants appeal. Reversed.
Syllabus by the Court
1. A writ of assistance to obtain possession of premises mortgaged, sued out by the mortgagee as the purchaser thereof at foreclosure sale, is a proceeding had on the final decree of foreclosure in the cause, and is subject to the statutory provision (Rev. St. s 1448) that 'no process shall be issued or other proceeding had on any final decree or order until the same shall be signed and recorded' upon the minutes of the court.
COUNSEL Jones & Jones and Massey & Baumgarten, for appellants.
L. G Starbuck, for appellee.
This cause was referred by the court to its late commissioners for investigation, who reported that the decree appealed from should be reversed for the reasons stated in this opinion which was prepared by them.
This is an appeal from an order of the circuit court of Orange county granting a writ of assistance to appellee, in pursuance of a previous foreclosure sale to it of certain mortgaged premises in possession of the appellants J. W. Wilmott and Sophia E. Wilmott, his wife.
The petition for writ of assistance alleged the rendition of final decree of foreclosure on July 5, 1895, sale thereunder and purchase by petitioner, confirmation of the sale on August 5, 1895, and the execution of a deed to the petitioner; that the appellants above named, by permission of petitioner, had continued to occupy the premises since the sale, because petitioner was unable to rent same; that demand had been made for possession, which they refused; that appellant J. W. Wilmott claimed possession under a tax deed to one R. G. Dunwoody, as trustee for him in pursuance of a sale for taxes of 1894, which was alleged to be void.
A sworn answer was filed by the Wilmotts admitting that they refused to surrender possession after demand of complainant as set out in the petition, and averring, among other things, 'that sale in foreclosure to complainant was not valid and effective against these defendants, because the proceedings under the decree of foreclosure and sale were had before the said decree was recorded, the said decree never since having been recorded.'
No exceptions were filed to the abstract, and it affirmatively shows that...
To continue reading
Request your trial
-
Fiehe v. R.E. Householder Co.
... ... See ... also, Wilmott v. Equitable Building & Loan ... Association, 44 Fla ... ...
-
Dundee Naval Stores Co. v. Mcdowell
... ... of the litigation, whether legal or equitable, cannot be ... adjudicated or affected by a decree ... overruled. City of Orlando v. Equitable Building & Loan ... Association, 45 Fla. 507, 33 So. 986, and Key ... have not overlooked the principle enunciated in Wilmott ... v. Equitable Building & Loan Association, 44 Fla ... ...
-
Wildwood Crate & Ice Co. v. Citizens Bank of Inverness
... ... recorded mortgage does not present case for equitable relief, ... in absence of allegations of inadequacy of ... Phillips v. Howell, 81 Fla. 380, 88 So. 126; ... Wilmott v. Equitable B. & L. Ass'n, 44 Fla. 815, ... 33 So. 447 ... ...
-
Winchester v. Hak
... ... In ... Wilmott v. Equitable Building & Loan Association, 44 ... Fla. 815, ... ...
-
Chapter 1-10 Sale
...265, 61 So. 500 (1913)); Dundee Naval Stores Co. v. McDowell, 65 Fla. 15, 61 So. 108 (1913); Wilmott v. Equitable Building & Loan Ass'n., 44 Fla. 815, 33 So. 447 (1903).[76] Fla. R. Civ. P....
-
Chapter 1-11 Title and Possession
...265, 61 So. 500 (1913)); Dundee Naval Stores Co. v. McDowell, 65 Fla. 15, 61 So. 108 (1913); Wilmott v. Equitable Building & Loan Ass'n., 44 Fla. 815, 33 So. 447 (1903).[77] Fla. R. Civ. P....