THE WAYNE REALTY & INVESTMENT COMPANY, A CORPORATION OF THE STATE OF FLORIDA, APPELLANT,
v.
FRANCIS S. WHITTEN AND M. K. L. WHITTEN, HIS WIFE, APPELLEES
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This case concerns whether a mortgagor can resist foreclosure based on pending claims to the property's title. The court held that while generally not allowed without eviction or fraud, such defenses may be permitted in equity if the vendor is insolvent and adverse claims are actively being litigated.
Yes, in equity, a mortgagor may resist foreclosure based on pending adverse title claims and vendor insolvency, even without actual eviction, if these circumstances warrant delaying foreclosure.
“It is well settled that a mortgagor in possession holding under deed with full covenant warranting the title and there has been no eviction, actual or constructive, or anything equivalent thereto, and no fraud or insolvency on tlm part of the vendor is.alleged, the defense of an outstanding title or breach of covenants cannot be set up to a bill of foreclosure -brought by the vendor for unpaid purchase money.”
This quote establishes the general legal principle that a mortgagor cannot typically use an outstanding title as a defense to foreclosure without eviction or fraud.
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Join FLexlaw to unlock all legal intelligenceWayne Realty sued to foreclose a purchase money mortgage. The Whitten appellees admitted the mortgage but resisted foreclosure, alleging pending claim…
The full statement of facts, procedural history, and disposition for this case are member content.
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Terrell, J.
Appellant brought suit against appellees in the Circuit Court of Dade County to foreclose a pur chase money mortgage. To the bill of complaint appellees filed their joint and several answer admitting the material allegations of the bill, but resisting foreclosure on the grounds that after the lands described in the bill had been purchased by appellees the State of Florida and one Henry T. Read had each laid claim thereto under the land laws of the United States, that appellant had knowledge of said claims and that appellees have continuously resisted said claims which are pending and undetermined.
Appellant filed exceptions for impertinence to certain portions of the answer relating to the claims of the State of Florida and Hemy T. Read to the said lands and the litigation pending for the purpose of settling said claims. The cancellor overruled appellant’s exceptions, from which order appeal was taken to this court.
It appears that the mortgagors are in possession of the premises, holding under covenant of warranty, that there has been no actual or constructive eviction and no fraud on the part of the vendee is alleged. It is alleged, however, that the vendee or mortgagee, while having been incorporated under the laws of the State of Florida, it has no-office, officer, director, agent or other representative in the State on whom service can be made, and that it has no-assets in the State or elsewhere except the mortgage and notes involved in this litigation.
It is well settled that a mortgagor in possession holding under deed with full covenant warranting the title and there has been no eviction, actual or constructive, or anything equivalent thereto, and no fraud or insolvency on tlm part of the vendor is.alleged, the defense of an outstanding title or breach of covenants cannot be set up to a bill of foreclosure -brought by the vendor for unpaid purchase money. Randall v. Bourgardez, 23 Fla. 264, 2 South. Rep. 310; Adams v. Fry, 29 Fla. 318, 10 South. Rep. 559; Paine v. Kemp, 77 Fla. 531, 82 South. Rep. 53; Peters v. Bow man, 98 U. S. 56; 27 Cyc. 1554; 19 R. C. L. 543; 3 Jones on Mortgages (7th ed.) 70.
We think under the facts in this case, the allegations as to litigation still pending to settle the claim of adverse title on the part of the State of Florida and Henry T. Read, and as to insolvency of the appellant are sufficient in equity to arrest the foreclosure proceeding pending the final disposition of these questions, and to that extent they modify or limit the rule as above stated. Randall v. Bourgardez, supra; Adams v. Fry, supra; Vice v. Littlejohn, 116 Ala. 276, 22 South. Rep. 488; Guice v. Sellars, 43 Miss. 52; Knight v. Coleman County (Tex. Civ. App.), 51 S. W. Rep. 258; Hughes v. Hatchet, 55 Ala. 539, 19 R. C. L. 543; 3 Jones on Mortgages (7th ed.) 70.
The answer admits the mortgage in question and the amount due thereon. It offers to pay the amount equitably due when the litigation affecting the title is finally disposed of, and prays for arrest of the foreclosure proceedings pending, such disposition. The decree of the chancellor was to this effect so it is affirmed.
West, C. J., and Ellis and Terrell, J. J., concur. Whitfield, P. J., and Strum and Brown, .1. J., concur In the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hendricks v. Stark, 99 Fla. 277 (Fla. 1930)…s sufficient ground in equity for the cancellation of a mortgage, the facts alleged do not show an entire failure of consideration, but at most, only a partial failure. It was also held in the case of Wayne Realty and Investment Company v. Whitten, 90 Fla. 433, 106 So. R. 125, that it is well settled that when a mortgagor is in possession, holding under a deed with full covenant warranting the title, and there has been no eviction, actual or constructive, or anything equivalent thereto, and no fraud or in…
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Reid v. Merrell, 100 Fla. 1110 (Fla. 1930)…. 41. Each point raised by appellant has been duly considered and there being no error shown as to awarding the decree for principal, interest, taxes and costs, the final decree is affirmed as to those items. See Wayne Realty & Inv. Co. v. Whitten, 90 Fla. 433, 106 So. R. 125; Simon v. Williams, 140 Miss. 854, 44 A. L. R. 402, 406; Kirkland v. Tampa, 75 Fla. 271, 78 So. R. 17. The decree is reversed as to the awarding of $500.00 solicitor’s fee, which is nearly 20% of the sum of the principal and interes…
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Kramer v. Barnett, 94 Fla. 297 (Fla. 1927)…ancellor sustaining exceptions to and striking the answer interposed to a bill to foreclose a mortgage. The order of the Chancellor should be sustained on authority of the opinion in the case of Wayne Realty and Investment Company v. Whitten et ux, 90 Fla. 433, 106 So. 125, and it is so ordered. Affirmed. Whitpield, P. J., and Terrell and Bupord, J. J., concur.…
Authorities Cited
- Adams v. Fry, 29 Fla. 318 (Fla. 1892)
- Randall v. Bourguardez, 23 Fla. 264 (Fla. 1887)
- Peters v. Bowman, 98 U.S. 56 (U.S. 1878)
- Paine v. McDonald R. Kemp, 77 Fla. 531 (Fla. 1919)