J. W. HINSON AND THE COTTONDALE STATE BANK, A CORPORATION, APPELLANTS,
v.
JOHN E. GAMMON, APPELLEE
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In a mortgage foreclosure action, the Florida Supreme Court held that mortgagors who have conveyed the entire mortgaged premises to third parties are not necessary parties to a foreclosure suit, unless the mortgagee seeks a personal judgment for any deficiency against them.
The mortgagors were not necessary parties to the foreclosure suit. A mortgagor who has conveyed the whole of the mortgaged premises is not a necessary party to foreclosure proceedings unless the mortgagee seeks a personal judgment for any deficiency against the mortgagor.
“The mortgagor, after he has conveyed the whole of the premises mortgaged is not a necessary party to the suit (foreclosure); nor indeed is he a proper party, unless a personal judgment for any deficiency there may be, after applying the property to the debt, is sought against him.”
Establishes the primary rule that mortgagors who have conveyed the entire mortgaged property are not necessary parties to foreclosure proceedings.
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Join FLexlaw to unlock all legal intelligenceGammon filed a bill to foreclose a mortgage executed by J. T. Mayo and his wife on December 31, 1906. After executing the mortgage, Mayo and his wife …
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Hocker, J.
The appellee, Gammon, filed a bill in the circuit court of Jackson county against the appellants and other parties to foreclose a mortgage executed to appellee by J. T. Mayo and his wife Susie, on the 31st of December, 1906, embracing certain lands therein described. Mayo and wife are not parties to the bill, and no relief is prayed against either of them. It is alleged in the bill that; after the mortgage was executed to appellee, Mayo and wife conveyed all the lands described in the mortgage to other parties, who are the defendants in this suit, and who are alleged to be the holders of the equity of redemption. The appellants demurred to the bill because Mayo and wife were not made parties to the suit. Decree fro confesso were entered against the other defendants. On rehearing the circuit judge overruled the demurrer, and from this ruling an appeal was taken to this court by Hinson and the bank.
The sole question here is whether Mayo and wife were necessary parties to the bill.
In 2 Jones on Mortgages (6th ed.) Sec. 1404, it is said: “The mortgagor, after he has conveyed the whole of the premises mortgaged is not a necessary party to the suit (foreclosure) ; nor indeed is he a proper party, unless a personal judgment for any deficiency there may be, after applying the property to the debt, is sought against him.” To the same effect see Johnson v. Foster, 68 Iowa, 140, 26 N. W. Rep., 39; West v. Miller, 125 Ind., 70, 25 N. E. Rep., 143; Bernard v. Shemwell, 139 N. C., 446, 52 S. E. Rep., 64; Watts v. Creighton, 85 Iowa 154, 52 N. W. Rep., 12; Lockwood v. White, 65 Vt., 466, 26 Atl. Rep., 639; Bennett v. Mattingly, 110 Ind., 197, 10 N. E. Rep., 299; Wilsie On Mortgage foreclosures, section 118, p. 137; Kerr’s Suppl. to Wilsie on Mortgage foreclosures, p. 1109.
The order appealed from is affirmed.
Taylor and Parkhill, J. J., concur;
Whitfield, C. J., and Shackleford and Cockrell, J. J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
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Hay v. Frank W. Isetts and wife, 98 Fla. 1026 (Fla. 1929)…nveyed all their interests in the mortgaged premises are neither necessary nor proper parties to a foreclosure suit unless a personal judgment for any deficiency may be sought against them. Bate v. Cook, 89 Fla. 40, 103 So. R. 126; Hinson v. Gammon, 61 Fla. 641, 54 So. R. 374; Phifer v. Abbott, 73 Fla. 402, 74 So. R. 488. In the instant case the mortgagors were.made parties to the foreclosure proceedings, a decree was entered against them, and in the prayer of the bill of complaint a deficiency decree is…
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The J. G. White Eng'g Corp. v. Peoples State Bank of Lakeland, 81 Fla. 35 (Fla. 1921)…eficiency decree, the administratrix was not even a necessary, and probably not a proper party. All that was necessary was that the court decree the amount due, and that in default of the payment the mortgaged property be sold. See Hinson v. Gammon, 61 Fla. 641, 54 South. Rep. 374, and Phifer v. Abbott, 73 Fla. 402, 74 South. Rep. 488. It is contended in the second place that the demurrer [*44] should have been sustained because the bill shows upon its face that the mortgage was void as to. appellant, in…
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Dennis v. Ivey, 134 Fla. 181 (Fla. 1938)…n. mortgagors have conveyed all their rights and interests in and to the mortgaged property to other parties, such mortgagors are neither necessary nor proper parties to a suit to foreclose unless a deficiency decree is sought. See Hinson v. Gammon, 61 Fla. 641, 54 So. 374, Ann. Cas. 1913A 83; Phifer v. Abbott, 73 Fla. 402, 74 So. 488; Hubbard v. Highland Realty & Investment Co., 115 Fla. 834, 156 So. 322. John L. Ivey, the complainant in the bill in the nature of a bill of review now before us, was party…
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