JAMES E. NALL AND MILDRED LOUISE NALL, APPELLANTS,
v.
JAMES M. RAYBON, ET AL., APPELLEES
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The court held that the trial court erred in denying reformation of a mortgage cancellation due to mutual mistake, as the rights of bona fide purchasers were not prejudiced.
[1] A mutual mistake in the execution of a mortgage cancellation may be grounds for reformation when the intent of the parties is clear and the rights of bona fide purchasers…
[2] Reformation of a mortgage cancellation is permissible where the execution of the cancellation was a mutual mistake and no innocent purchasers or intervening parties will…
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Join FLexlaw to unlock all legal intelligenceAppellants sought to reform a mortgage cancellation to apply only to the 'Flea Market' property, not the 'Quaker' property, due to a mutual mistake. T…
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THOMPSON, Judge.
James and Mildred Nall appeal from an order denying their request for reformation of a mortgage cancellation and for foreclosure. We reverse.
Joe and Jo Anne Nall owned a parcel of land, composed of the “Quaker” property and the “Flea Market” property, encumbered by a first mortgage held by the Barnhills and by a second mortgage held by appellants. William Moore bought the “Quaker” property on August 27,1974 subject to the first and second mortgages. The Raybons bought the ‘ Quaker” property from Moore on April 7, 1980. Joe and Jo Anne used the proceeds from the July 24, 1980 sale of the “Flea Market” property to satisfy the first mortgage held by the Barnhills. On this same day the Barnhills signed a “Mortgage Cancellation” as to the first mortgage and the appellants signed a “Mortgage Cancellation” as to the second mortgage. Appellants subsequently sought to reform the “Mortgage Cancellation” they had executed to reflect a cancellation regarding only the “Flea Market” property. Appellants also sought to foreclose on the “Quaker” property.
It is clear from the testimony of appellants and of Joe Nall that they intended a cancellation as to only the “Flea Market” property. The execution of the cancellation as to both the “Quaker” and “Flea Market” properties was therefore a mutual mistake, such that appellants are entitled to reformation so long as the rights of any bona fide and innocent purchasers will not be prejudiced. See Burleson v. Brogdon, 364 So. 2d 491 (Fla. 1st DCA 1978); Hardaway Timber Co. v. Hansford, 245 So. 2d 911 (Fla. 1st DCA 1971). There is no evidence that the requested reformation would in any way prejudice the rights of any bona fide and innocent purchasers or injure the rights of any intervening parties. Accordingly, the trial court erred in denying reformation.
We reverse and remand with instructions for the trial court to reform the July 24, 1980 cancellation executed by appellants to reflect a cancellation as to only the “Flea Market” property, and for further proceedings consistent with this opinion.
NIMMONS and BARFIELD, JJ., concur.
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Nordberg v. Green, 638 So. 2d 91 (Fla. 3d DCA 1994)…one as to the nature of the undertaking which Mrs. Green voluntarily assumed, or, indeed, of any issue of fact or law surrounding the transaction. Cf. Heisler v. Florida Mortgage Title & Bonding Co., 105 Fla. 657,142 So. 242 (1932); Nall v. Raybon, 451 So. 2d 923 (Fla. 1st DCA 1984); Finger Lickin Food Corp. v. Campbell, 407 So. 2d 235 (Fla. 3d DCA 1981). While, in retrospect, Mrs. Green made a very bad decision, indeed, which will cost her a great deal of money, neither law nor equity may operate to relieve…
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USAA Cas. Ins. Co. v. Crista Marie Threadgill, 729 So. 2d 476 (Fla. 4th DCA 1999)…um in fee simple. See [*479] id. at 1337-38; see also Kidd v. Fowler, 498 So. 2d 969, 970 (Fla. 4th DCA 1986) (allowing reformation of a deed which failed to include a clause in a purchase and sale agreement reserving a life estate); Nall v. Raybon, 451 So. 2d 923, 924 (Fla. 1st DCA 1984) (allowing reformation where a mortgage cancellation erroneously included certain property); Boston Old Colony Ins. Co. v. Popple, 305 So. 2d 877, 880 (Fla. 1st DCA 1974) (allowing reformation of auto insurance policy where t…
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Roberts v. Hart, 573 So. 2d 12 (Fla. 4th DCA 1990)…alcone’s mortgage could not act to the detriment of appellant, an intervening party without notice, the reformation did not affect the priority of appellant's mortgage. Meadows v. Citicorp Leasing, 511 So. 2d 622 (Fla. 5th DCA 1987); Nall v. Raybon, 451 So. 2d 923 (Fla. 1st DCA 1984). Appellant’s mortgage has priority over the reformed Falcone mortgage since the reformation took place subsequent to the recording of her mortgage. Appellant’s mortgage has priority over Orange State and Ocean General1 since the…
Authorities Cited
- Hardaway Timber Co. v. Hansford, 245 So. 2d 911 (Fla. 1st DCA 1971)
- Burleson v. Brogdon, 364 So. 2d 491 (Fla. 1st DCA 1978)