WILLIAM B. PHIFER, IN HIS OWN RIGHT AND AS EXECUTOR, APPELLANT,
v.
LUCY B. ABBOTT, APPELLEE
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Lucy B. Abbott sought to enforce a mortgage lien left by her deceased mother, Margaret S. Abbott. The Florida Supreme Court held that a sole heir cannot enforce a mortgage debt without proper administration of the estate unless the estate is unencumbered, and Abbott's allegations were insufficient to establish her legal right to bring suit.
The court held that upon the death of a mortgagee, the executor or administrator is the proper party to enforce the mortgage lien. A sole heir may enforce the mortgage debt under Section 2390 only if the estate is not indebted, and the complainant must allege both that the estate is unencumbered and that she is the owner of the note and mortgage. The allegations here were insufficient.
“Upon the death of the mortgagee, his or her executor or administrator is the proper party complainant to enforce the moregage lien upon real estate.”
Establishes the fundamental rule that executors or administrators, not heirs alone, are the proper parties to enforce mortgage liens.
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Join FLexlaw to unlock all legal intelligenceMargaret S. Abbott, the mortgagee, died on July 21, 1890, leaving Lucy B. Abbott as her sole heir. Lucy B. Abbott took possession of all property left…
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Whitfield, J.
In proceedings brought by Lucy B. Abbott to enforce a mortgage lien upon real estate given by Martha P. Perry to Margaret S. Abbott, it is alleged “that on July 21, A. D. 1890, the said Margaret S. Abbott died, leaving as her sole heir Lucy B. Abbott, your oratrix herein, who immediately went into possession of all the property left by her mother,- said Margaret S. Abbott, deceased.” Among the grounds of a demurrer to the bill of complaint was one that “it does not appear that the complainant is entitled to institute suit upon .said note and mortgage, or that she is the leghl owner thereof.” The demurrer was overruled and the defendant Phifer appealed.
Upon the death of the mortgagee, his or her executor or administrator is the proper party complainant to enforce the moregage lien upon real estate. Section 2390 of the General Statutes provides that: “No administration shall be necessary upon any estate where there is a sole heir and the estate is not indebted.” Assuming that under this statute a sole heir of a mortgagee merely as such may en force tlie mortgage debt if “the estate is not indebted,”' there is no allegation here that the estate of the deceased mortgagee “is not indebted,” and no allegation that the complainant is the owner of the note and mortgage except as she may be such owner because she is the “sole heir” of the mortgagee. The allegation that upon the death of the mortgagee the complainant, her sole heir, “went' into possession of all the property left by her mother,” the mortgagee, is not sufficient to show a right to maintain this suit.
The order overruling the demurrer is reversed.
Shackleford, C. J., and Cockrell, J., concur. Taylor, J., takes no.part. Hocker, J., absent.
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Phifer v. Abbott, 73 Fla. 402 (Fla. 1917)…Shackleford. J., (after stating the facts.) This is the third appeal which has come to this court in this case, all of the appeals being from interlocutory orders. Upon the first appeal, Phifer v. Abbott, 68 Fla. 10, 65 South. Rep. 869, the only points decided were that “Upon the death of the mortgagee, his or her executor or administrator is the proper party complainant to' enforce the mortgage lien upon real estate.” ■ “In a suit to enforce a mortgage lien u…
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Fasel v. Cox, 99 Fla. 968 (Fla. 1930)…sal, entered an order denying the petition. From this order, appellant appealed.' Upon the death of the mortgagee, his or her executor or administrator is the proper party complainant to enforce the mortgage lien upon real estate. Phifer v. Abbott, 68 Fla. 10, 65 So. R. 869. Whenever in a proceeding in equity, it is necessary that the estate of a deceased person be represented and the executor is interested adversely to said estate, an administrator ad litem should be appointed for that proceeding and w…
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Phifer v. Abbott, 69 Fla. 162 (Fla. 1915)…ant to maintain the suit did not appear, the allegation as to'the complainant’s right to sue being that she was sole heir pf her mother Martha S. Abbott “who immediately went into possession of all the property left by her mother.” Phifer v. Abbott, 68 Fla. 10, 65, South. Rep. 869. Subsequently the trial court granted leave to file an amended bill in the cause upon the payment of costs, and the defendant Phifer appealed. It is contended that the amended bill of complaint should not have been filed becau…