EDWIN H. MOTE AND MYRON W. LOVELL, EDWIN S. NEWTON, AS EXECUTOR OF THE WILL OF WILLIAM E. VAIL DECEASED, OLIVIA H. VAIL, OLIVIA A. LOVELL AND LOUTIE H. MOTE, APPELLANTS,
v.
SALLIE SIMS MORTON AND HER HUSBAND, J. B. MORTON, APPELLEES
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Appellants challenged a foreclosure decree on two mortgages given as collateral securities. The Florida Supreme Court reversed the decree because the heirs or devisees of William E. Vail, the deceased mortgagor, were necessary parties to the suit and had not been joined.
The heirs or devisees of William E. Vail were necessary parties to the foreclosure suit, and the decree of foreclosure was erroneous in their absence. The court cannot properly pass upon the rights of such necessary parties without their presence in the action.
“within the decision in the case of Scott v. Jenkins, recently handed down by this court, 46 Fla. 518, 35 South. Rep. 101, the heirs or devisees of the said William E. Vail, deceased, are necessary parties to this suit, and in the absence of such parties a decree of foreclosure is erroneous.”
Establishes the controlling legal principle that heirs or devisees of a deceased mortgagor are necessary parties to a foreclosure action.
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Join FLexlaw to unlock all legal intelligenceWilliam E. Vail died in 1900 at his winter residence in Lake County, Florida, leaving a will that appointed Edwin S. Newton as executor. Two mortgages…
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Cockrell, J.
Appellees filed their bill to enforce two mortgages given as collateral securities to a note made by Edwin H. Mote; one of the mortgages being executed by the Vails and the Lovells jointly, and the other by the Vails alone. The bill alleges that William E. Vail died in 1900, at his winter residence in Lake county, Florida, and left a will wherein Edwin S. Newton was appointed executor; it does not appear that the lands covered by these mortgages were devised thereby, but only that the will was duly proven and recorded in New York; that letters were issued to Newton; that a certified transcript of the record and a copy of the will were filed and recorded in the County Court of Lake county, Florida, and thereupon the said Newton was appointed executor by said court and was acting as such in the discharge of said trust. From this statement it will be seen that within the decision in the case of Scott v. Jenkins, recently handed down by this court, 46 Fla. 518, 35 South. Rep. 101, the heirs or devisees of the said William E. Vail, deceased, are necessary parties to this suit, and in the absence of such parties a decree of foreclosure is erroneous.
It is immaterial whether the assignments of error being joint, all the parties appellant joining therein are .injuriously affected thereby, for the question of necessary parties may be considered by this court under the long established practice, in the absence of any assignment based thereon. This court can not with propriety pass upon the rights of such necessary parties in their absence.
As the decree must be reversed for lack of parties, we do not pass upon am' other questions sought to be raised here.
Carter, P. J., and Maxwell, J., concur. Taylor, C. J., and Hooker and Shackleeord, JJ., concur in the opinion.
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Berns v. Harrison, 100 Fla. 1105 (Fla. 1930)…intly made, as the point raised by one appellant may be based upon a distinct ruling from other appellants. J. M. & P. R. R. Co. v. Broughton, 38 Fla. 139, 20 So. R. 869; 8 Standard Procedure 633; Finley v. Foster 211, Ill. App. 609; Mote v. Morton, 46 Fla. 478, 35 So. R. 656. As to the general assignment based upon the awarding of solicitor’s fees, a reading of the bill of complaint will disclose that there is no allegation nor proof that complainant had agreed with his solicitors, or was obligated to pa…
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Fla. Land Rock Phosphate Co. v. Anderson, 50 Fla. 516 (Fla. 1905)…h. Rep. 265; Craver v. Spencer, 40 Fla. 135, 23 South. Rep. 880 ; Rawls v. Tallahassee Hotel Co., 43 Fla. 288, 31 South. Rep. 237; Scott v. Jenkins, 46 Fla. 518, 35 South. Rep. 101; Steere v. Tention, 46 Fla. 510, 35 South. Rep. 106; Mote v. Morton, 46 Fla. 478; 35 South. Rep. 656; Rumeli v. City of Tampa, 48 Fla. 112, 37 South. Rep. 563; Camp Phosphate Company v. Anderson, 48 Fla. 226, 37 South. Rep. 722. [*521] The petitions for rehearing are denied. Cockrell and Whitfield, JJ. concur. Taylor and Parkh…
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Mote v. Sallie Sims Morton and Her Husband, 52 Fla. 548 (Fla. 1906)…Parkhill, J.: This is the second appeal in this case. For a statement of the case upon the former appeal, see 46 Fla. 478, 35 South. Rep. 656. On 30th day of January, 1901, appellees filed their bill to foreclose two mortgages given as collateral securities to a note made by Edwin H. Mote. One of the mortgages was executed by Olivia A. Lovell and her husband, Myron W.…
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- Scott v. Jenkins, 46 Fla. 518 (Fla. 1903)