JOHN PETSAS AND THEONY PETSAS, HIS WIFE, APPELLANTS,
v.
EDWARD O'GRADY, APPELLEE
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The Florida Supreme Court reversed a lower court's mortgage foreclosure decree, finding it erroneously awarded the full principal amount instead of the reduced amount owed after partial payment.
Yes, the lower court erred by entering a decree for the full $2,000.00 principal. The decree should have been for the $1,500.00 principal that was admittedly due.
“It was alleged in the bill of complaint that $500.00 had been paid on the original indebtedness and that there was at the time of the institution of suit due and owing on said note the sum of $1,500.00 as principal, with interest from date to the date of the filing of the bill.”
This quote establishes the factual basis for the lawsuit and the amount of principal claimed.
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Join FLexlaw to unlock all legal intelligenceA mortgage foreclosure suit was filed seeking $1,500.00 principal plus interest, reflecting a $500.00 payment on an original $2,000.00 debt. The final…
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Buford, J.
In this case the appellee sought to foreclose a mortgage given to secure an original indebtedness of $2,000.00. It was alleged in the bill of complaint that $500.00 had been paid on the original indebtedness and that there was at the time of the institution of suit due and owing on said note the sum of $1,500.00 as principal, with interest from date to the date of the filing of the bill. The decree, however, required the defendants to pay the full sum of $2,000.00 as principal, together with interest and attorney’s fees.
It is admitted on brief in behalf of the appellee that the decree should have been for $1,500.00 principal and that the entry of the decree for the sum of $2,000.00 was erroneous.
We hold that the decree should have been for the sum of $1,500.00, with interest, costs and attorney’s fees,'instead of having been in the sum of $2,000.00, with interest, costs and attorney’s fees. Tbe decree is therefore reversed and remanded with directions that a decree be entered conforming to this opinion. The costs of this appeal must be taxed against the appellee.
Reversed.
Whitfield, P. J., and Terrell, J., concur. Ellis, C. J., and Brown, J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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The Richter Jewelry Co., Inc. v. Schweinert, 125 Fla. 199 (Fla. 1935)…regarded as a mortgage, because given to secure the payment of money, and such right of redemption belongs to the mortgagor and those claiming under him. This right cannot be extinguished except by due process of law. Stovall v. Stokes, 94 Fla. 717, 115 Sou. Rep. 828; Quinn Plumbing Co., Inc., v. New Miami Shores Corp., 100 Fla. 413, 129 Sou. Rep. 690, 73 A. L. R. 600. “He who seeks equity must do equity, so it is an essential part of a bill to redeem a mortgage that it offer in express terms to pay the amount…
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Iola v. Brumick, 131 Fla. 46 (Fla. 1938)…agreements concerning the subject matter, or by the aid of extraneous evidence which will determine the question. The attitude of the parties relative to the conveyance after its execution may also be considered.” See Stovall v. Stokes, 94 Fla. 717, 115 Sou. Rep. 828. In Holmberg v. Hardee, 90 Fla. 787, 108 Sou. Rep. 211, this Court said: “A definitive test to determine whether an absolute deed, executed in consideration of a precedent debt, with an attendant agreement to reconvey the premises to the grantor o…
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Markell v. Hilpert, 140 Fla. 842 (Fla. 1939)…cts and circumstances of the parties and if it is clear that the real purpose of the parties to an absolute conveyance of property was to secure the payment of money, the conveyance will be regarded as a mortgage. See Stovall v. Stokes, 94 Fla. 717, 115 So. 828; McKinney v. Gainey, 96 Fla. 547, 118 So. 917. It has been held by this Court that the relation of the parties at the time of its execution may be considered in determining whether a deed is a mortgage. The conduct of the parties and the circumstanc…1 / 2
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