WILLIAM A. KNIGHT, APPELLANT,
v.
CAM HODGE, APPELLEE
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A foreclosure sale purchaser's attempt to obtain a writ of assistance against the original mortgagor was complicated when the mortgagor filed a petition to set aside the foreclosure decree. The Florida Supreme Court held that while the foreclosure decree itself could not be attacked collaterally, the trial court erred in vacating the sale confirmation order without notice to the original purchaser at the master's sale.
A final foreclosure decree cannot be attacked by motion filed more than twenty days after its rendition. However, the trial court erred in setting aside the order confirming the sale without providing notice to the original purchaser (the Manufacturing Company) and without making it a party to the proceeding, as the Manufacturing Company was a necessary party whose interests were directly affected.
“Such decree could not be attacked by motion made more than twenty days after its rendition.”
Establishes that final foreclosure decrees are protected from collateral attack beyond the twenty-day period.
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Join FLexlaw to unlock all legal intelligenceIn November 1907, the Florida Fertilizer Manufacturing Company filed a mortgage foreclosure against Cam Hodge. A decree pro confesso was entered in Ja…
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Paekhill, J.
— In November, 1907, the Florida Fertilizer Manufacturing Company filed its bill of complaint in the Circuit Court for Marion County to foreclose a certain mortgage on real estate given by the defendant,Cam ITodge. After personal service on the defendant, a decree pro confesso was entered against him on the Rule Day in January, 1908. On the 19th day of October, 1908, a final decree was entered, by which a master was appointed to make a sale of said property. Under the terms of the decree, the master sold the property and executed a deed therefor to The Florida Fertilizer Manufacturing Company, and on the 10th day of December, 1908, the chancellor confirmed the sale.
On August 20, 1910, William A. Knight, appellant here, having purchased the property from The Florida Fertilizer Manufacturing Company by quit claim deed, filed his petition for a writ of assistance against Cam Hodge, who had never surrendered possession of the property. Hodge filed an answer to the writ of assistance, and he filed a petition, also, to set aside the final decree of foreclosure and the special master’s sale thereunder. Knight demurred to the petition and filed a motion to quash the answer.
Finally, on April 27th, 1911, the court made an order denying the petition for writ of assistance, declined to go behind the final decree or vacate the same, but set aside the order confirming the sale of the property, allowed defendant to pay amount due by him under the final decree, and in default, directed the land to be advertised and sold in the usual manner. From this order Knight appealed.
We think the court was correct in refusing to set aside the final decree in foreclosure. Such decree could not be attacked by motion made more than twenty days after its rendition. Mann v. Jennings, 25 Fla. 730, 6 South. Rep. 771. On application for a writ of assistance objections cannot be heard to affect the decree determining the rights of defendants. 4 Cyc. 297; Howe v. Lemon, 47 Mich. 544, 11 N. W. Rep. 379.
The court erred, however, in setting aside or vacating the previous order confirming the sale without notice to The Florida Fertilizer Manufacturing Company and without making that company a party to the proceeding. It does not appear that it was given any notice. That company was the purchaser at the sale, and had paid to the master the amount of its bid, and the sale had been confirmed by the court. It does not appear how much Knight paid the Manufacturing Company for the land, or how much the land was sold for at the master’s sale. Knight only bought the land from the Manufacturing Company. The decree was not assigned to him. The Manufacturing-Company owned and controlled the decree and would be entitled to receive the amount due by the defendant under the final decree if he paid the same under the order of the court made April 27th, 1911. The Manufacturing Coni' pany was a necessary party to any proceeding instituted to set aside or vacate the order confirming the sale to it. Macfarlane v. Macfarlane, 50 Fla. 570, 39 South. Rep. 995.
The order appealed from is reversed.
Taylor and Hocker, J. J., concur;
Whitfield, C. J., and Shackleford and Cockrell, J. J., concur in the opinion.
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Citator
Cited By
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Dundee Naval Stores Co. v. McDowell, 65 Fla. 15 (Fla. 1913)…the assignment upon which the appellant chiefly relies for a reversal. It has been ably, earnestly and [*35] ingeniously argued before us by the respective counsel and we have also- been favored with excellent briefs. As we held in Knight v. Hodge, 62 Fla. 516, 56 South. Rep. 942, “On an application for a writ of assistance, objections will not be heard to affect the decree determining the rights of the parties.” By the use of the word parties here, of course, we mean parties to the litigation and their p…
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Fla. Fertilizer Mfg. Co. & William A. Knight v. Cam Hodge, 64 Fla. 275 (Fla. 1912)…the sale of the property under the decree to the Florida Fertilizer Manufacturing Company, the mortgagee; but as the company was not made a party defendant in the petition, the order of the court vacating the sale was reversed. See Knight v. Hodge, 62 Fla. 516, 56 South. Rep. 942. Subsequently the Florida Fertilizer Manufacturing Company was made a party to the petition to set aside the order confirming the sale. As the company failed to respond to the petition after service of process on it was made, a…
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W. 132 Feet of S. Half of Se. Quarter of Sw. Quarter of Sw. Quarter of Section Twenty-six v. The City of Orlando, 80 Fla. 229 (Fla. 1920)…named in the petition appealed. “Nothing can be reecived as a defense to an application for a writ of assistance to affect .the decree in aid of which the writ is asked, defendant * * * being concluded on the merits.” 5 C. J. 1322; Knight v. Hodge, 62 Fla. 516, 56 South, Rep. 912; Keil v. West, 21 Fla. 508. “However the jurisdiction of the court' in the original cause is open to question on an application for writ of assistance to enforce the decree therein.” 5 C. J. 1323 and authorities cited in Note 85…
Authorities Cited
- Macfarlane v. Macfarlane, 50 Fla. 570 (Fla. 1905)
- Mann v. Jennings, 25 Fla. 730 (Fla. 1889)