PAUL RICHMOND, APPELLANT,
v.
STOCKTON, WHATLEY, DAVIN & COMPANY, APPELLEE
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The court held that the trial court erred in dismissing the counterclaim because the priority of mortgages can depend on actual notice, not just recording dates.
Plaintiff sued to foreclose a mortgage. Defendant counterclaimed, alleging his mortgage had priority over plaintiff's mortgage and future advances due…
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PER CURIAM.
Stockton, Whatley, Davin & Company instituted an action to foreclose a mortgage. Among the multiple defendants was Paul Richmond, who in his answer and by way of a counterclaim for foreclosure alleged that the Stockton mortgage was inferior to a mortgage Richmond held on the same property. Richmond alleged that at the time Stockton executed its mortgage it had actual notice of the prior Richmond mortgage. Richmond further alleged that his mortgage had a priority over future advances made by Stockton.
Stockton moved to dismiss Richmond’s counterclaim on the ground that it affirmatively appeared on the face of the counterclaim that Stockton’s mortgage was recorded before Richmond’s. Upon a finding that Stockton’s mortgage and future advances were as a matter of law prior to Richmond’s, the trial court granted the motion. In Cone Brothers Construction Co. v. Moore, 141 Fla. 420, 193 So. 288 (1940) (per curiam), the Florida Supreme Court stated
On the record in the instant case, it is practically impossible to determine which is the prior mortgage. That can be determined only after the facts are ascertained from the testimony. So far as the record discloses, the mortgage of appellees is prior, it having been recorded prior to that of appellants (see section 5698, C.G.L., 1927 [now codified at § 695.01, Fla.Stat. (1981) ]); but, if appellees had knowledge, express or implied, of appellants’ mortgage prior to the execution and recording of their own, as is alleged, then the mortgage of appellants is prior. 141 Fla. at 426, 193 So. at 291.
Because we conclude that the case sub judice is indistinguishable from Cone, we reverse and remand for further proceedings in light of that case and section 695.01, Florida Statutes (1981).
Reversed and remanded.
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Lavine Mendelson v. Great W. Bank, 712 So. 2d 1194 (Fla. 2d DCA 1998)…ave been superior to Great Western’s mortgage notwithstanding that the mortgage was the first to be recorded in Hillsborough County. See First Federal Sav. & Loan Ass’n v. Fisher, 60 So. 2d 496 (Fla.1952); Richmond v. Stockton, Whatley, Davin & Co., 430 So. 2d 571 (Fla. 3d DCA 1983); Rafkind v. Beer, 426 So. 2d 1097 (Fla. 3d DCA 1983). Rather, the bank premised its motion for summary judgment of foreclosure on the assertion that, in fact, Mr. Mendelson had no interest in the property because the language in…
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Kingsland v. Godbold, 456 So. 2d 501 (Fla. 5th DCA 1984)…st has superiority over an interest created later from the same source, provided that notice of the first created rights are available to those later acquiring rights in the same land.” Id. at 117. See also Richmond v. Stockton, Whatley, Damn & Co., 430 So. 2d 571 (Fla. 3d DCA 1983); Dunn v. Stack, 418 So. 2d 345 (Fla. 1st DCA 1982); Ruotal Corporation N. W, Inc. v. Ottati, 391 So. 2d 308 (Fla. 4th DCA 1980). Therefore, Godbold took subject to such rights as Kingsland-Henry might have had. The trial court fo…
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Tobin v. Compte, 544 So. 2d 341 (Fla. 3d DCA 1989)…PER CURIAM. Affirmed. Cone Bros. Const. Co. v. Moore, 141 Fla. 420, 193 So. 288 (1940); Richmond v. Stockton, Whatley, Bavin & Company, 430 So. 2d 571 (Fla. 3d DCA 1983).…
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- Cone Bros. Constr. Co. v. Malinda W. Moore (Mrs. A. J. Moore) et vir., 141 Fla. 420 (Fla. 1940)