BENJAMIN POLLOCK, APPELLANT,
v.
EMIL MORTON, APPELLEE

Fla. 3d DCA | 1984-08-28
No. 84-66
Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
455 So. 2d 574 Florida District Court of Appeal, Third District (1984) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Benjamin Pollock appealed a judgment granting Emil Morton an equitable lien on property held by T & M Investments, Inc. The Florida District Court of Appeal reversed, holding that advancing money to a corporation for real property acquisition does not create an equitable lien absent an agreement or mortgage, and that equity does not favor granting such a lien to a party whose prior fraudulent conveyance was already set aside.


Holding

The court held that advancing money to a corporation for real property acquisition does not create an equitable lien or equitable mortgage as a matter of law absent an agreement or mortgage. The court further held that it is not a matter of equity and good conscience to grant such a lien to Morton, particularly where a prior fraudulent conveyance was set aside and the lien would be superior to Pollock's recorded judgments. Additionally, Morton's action was barred by his failure to assert the interest as a compulsory counterclaim in the prior fraudulent conveyance action.


Headnotes

[1] Advancing money to a corporation for the acquisition and improvement of its own property, without a mortgage or agreement for such an interest, does not create an equitab…

[2] Chancery court intervention to create an equitable lien is not justified by equity and good conscience when the claimant seeks an interest superior to prior recorded judg…

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Key Quotes

“the basis for Morton's claim— that, without either receiving a mortgage from, or agreeing to the existence of such an interest with T & M — he advanced money to the corporation for that entity to acquire and improve realty taken in its own name, simply does not, as a matter of law, give rise to an equitable lien or equitable mortgage upon the property.”

Establishes that advancement of funds to a corporation for real property acquisition does not create an equitable lien absent a mortgage or agreement.

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Facts & Procedural History

Morton advanced money to T & M Investments, Inc., a corporation in which he held a substantial interest, for the corporation to acquire and improve re…

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Opinion of the Court
SCHWARTZ, Chief Judge.

SCHWARTZ, Chief Judge.

The final judgment granting the appellee Morton a so-called, but wholly misnamed “equitable lien” on property titled in a corporation in which he held, to say the least, a substantial interest, T & M Investments, Inc.,1 is completely unsupportable2 and is consequently reversed. Of the numerous reasons which may properly be assigned for this result, we refer only to the most obvious:

1. The basis for Morton’s claim— that, without either receiving a mortgage from, or agreeing to the existence of such an interest with T & M — he advanced money to the corporation for that entity to acquire and improve realty taken in its own name, simply does not, as a matter of law, give rise to an equitable lien or equitable mortgage upon the property.3 Proudley v. Fidelity & Guaranty Fire Corp., 345 Pa. 385, 29 A. 2d 48 (1942); compare, e.g., So-carras v. Yaque, 452 So. 2d 992 (Fla. 3d DCA 1984); Merritt v. Unkefer, 223 So. 2d 723 (Fla.1969); 36 Fla.Jur.2d Mortgages § 10 (1982).4

2. It is manifestly not a matter of “equity and good conscience,” as is indispensable for the intervention of the chancery court to achieve any such result, Turturro v. Schmier, 374 So. 2d 71 (Fla. 3d DCA 1979), for Morton (a) to receive an “equitable lien” upon property which was the subject of a transfer to him previously set aside as a fraudulent conveyance in a judgment we affirmed in Morton v. Pollock, 386 So. 2d 1327 (Fla. 3d DCA 1980) (per curiam), particularly when (b) the lien is adjudicated as an interest superior to recorded judgments of the appellant, Dr. Pollock, which represent a portion of the consideration owed by T & M (and therefore, in essence, Morton) for Pollock’s original transfer of that very same property to it. See Pollock v. Morton, 311 So. 2d 206 (Fla. 3d DCA 1975).

3. The appellee’s action is barred by virtue of his failure to assert the contention to establish his alleged interest in the property as a compulsory counterclaim in the prior action to set aside the fraudulent conveyance. Cabinet Crafts, Inc. v. A.G. Spanos Enterprises, Inc., 348 So. 2d 920 (Fla. 2d DCA 1977), and cases cited.

The judgment below is reversed and the cause remanded with directions to cancel and hold for naught the lien imposed therein and to dismiss the complaint with prejudice. Because of the intolerable delay already involved in these and related proceedings, we order that these directions be complied with forthwith upon the receipt of our mandate in the circuit court. In addition, the time for filing a motion for rehearing in this appeal is shortened to five days from the date hereof.

Reversed and remanded with directions.

. Much of the background of this cause, including numerous prior appearances in this court, is detailed in Pollock v. T & M Investments, Inc., 420 So. 2d 99 (Fla. 3d DCA 1982), pet. for rev. denied, 430 So. 2d 452 (Fla.1983). See also, Pollock v. T & M Investments, Inc., 455 So. 2d 573 (Fla. 3d DCA 1984).

. By separate order, we have granted Pollock's motion for appellate attorney's fees under Sec. 57.105, Fla.Stat. (1983) in the amount of $5,000.

. As opposed to a claim against or interest in T & M.

. Appellee's counsel’s admission at oral argument that — because none exists — he could find no authority to support his position on the merits would inspire our admiration for its candor had it not come so late in the game.


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Citator

Cited By

  • Pollock v. T & M Invs., Inc., 455 So. 2d 573 (Fla. 3d DCA 1984)
    …this opinion. In an attempt to put this interminable litigation to an end, we also direct that, immediately thereafter, the property of T & M unencumbered by the lien or any interest of Morton — which we have ordered cancelled in Pollock v. Morton, 455 So. 2d 574 (Fla. 3d DCA 1984) — be subject to execution to satisfy any judgment,4 held by Pollock against it. It is also ordered that the time for filing a motion for rehearing herein is shortened to five days from the date hereof. . This was the date a fraud…
    1 / 3
  • Emil Morton v. Kovner, 524 So. 2d 460 (Fla. 3d DCA 1988)
    …PER CURIAM. Affirmed. See Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985); Shaw v. Shaw, 334 So. 2d 13, 16 (Fla.1976); Pollock v. Morton, 455 So. 2d 574, 575 (Fla. 3d DCA 1984).…

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