GEORGE W. SCHILLING, AND WILLIAM H. SCHILLING, AS ADMINISTRATORS OF THE ESTATE OF GEORGE SCHILLING, ALIAS GEORGE SCHILLING, DECEASED, APPELLANTS,
v.
BANK OF SULPHUR SPRINGS, A CORPORATION, G. LUDWIG FISHER AND ELIZABETH FISHER, HIS WIFE, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida Supreme Court affirmed a foreclosure judgment in favor of the Bank of Sulphur Springs, holding that the bank was equitably subrogated to the rights of the original purchase-money mortgagee, thereby taking priority over a pre-existing judgment lien held by the Schilling estate.
The court affirmed the foreclosure, holding that the bank is equitably subrogated to the rights of Mrs. Dominguez as the original purchase-money mortgagee and therefore takes priority over the Schilling judgment, even if that judgment is valid.
“Dominguez, who had paid Perry the full purchase price of the land and the bank had paid her in full all she paid. [...] Under this state of facts equity would require that the bank be subrogated to the rights of Mrs”
Establishes the equitable basis for subrogation—the bank stepped into the position of the original purchase-money mortgagee.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFisher purchased land in 1922 for $1,600, with the purchase price loaned by Mrs. Dominguez, who took a mortgage to secure the loan. Three years later,…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Judgment Lien Priority cases and more on FLexlaw
The appellee, Bank of Sulphur Springs, brought suit against F. Ludwig Fisher and Elizabeth Fisher, his wife, to foreclose a mortgage. Appellants were also made parties defendant because of a judgment recovered by George Schilling in the Circuit Court of Hillsborough County against Fisher prior to the execution of the mortgage. Fisher answered the bill to foreclosure admitting all material allegations thereof and in addition thereto set up the fact that he had lived on the mortgaged premises continuously to within two months of the institution of the foreclosure suit.
The appellants also answered the bill and required strict proof of the material allegations thereof. As a defense appellants allege that they have been duly appointed ad*182ministrators of the estate of George Schilling who during his life time recovered a judgment against F. Ludwig Fisher in the Circuit Court of Hillsborough County for the sum of $6,986.25. It is further alleged that no part of said judgment has ever been satisfied nor was it discharged by a certain bankruptcy proceeding against Fisher, but on the other hand was and is a fixed charge and a prior claim against the lands described in the mortgage.
Much of the briefs of counsel for both parties is devoted to the question of whether or not the judgment of George Schilling was regular and valid or whether it was discharged by the bankruptcy proceeding referred to, or whether it was barred by Fisher’s alleged homestead claim or whether such a claim actually existed in Fisher’s favor and whether it was in fact a claim or lien against the lands prior in dignity to the mortgage.
In the state of the case we deem it unnecessary to answer any of these questions. The record discloses that the Schilling judgment against Fisher was secured in 1916 while he (Fisher) bought the lands described in the mortgage in 1922 from a man named Perry for $1,600.00 which money he (Fisher) borrowed from a Mrs. Dominguez who advanced him the full amount of the puchase price. Mrs. Dominguez paid the amount direct to Perry who executed a mortgage to her to secure the loan at the same time executing a deed to Fisher. All the foregoing having taken place as one transaction.
Three years elapsed and the Dominguez mortgage matured. The mortgagee demanded payment and Fisher went to the Bank of Sulphur Springs for a loan for that purpose. Perry who was an officer of the bank and had sold the land to Fisher examined the abstract, which had not been brought down to date and re-certified, but showed the judg*183ment in favor of Schilling against Fisher. Fisher exhibited to Perry his discharge from bankruptcy dated subsequent to said judgment and assured him that he had lived on the land continuously and had claimed it as his homestead. On thq basis of these assurances and his prior knowledge that the money was for the purchase price of the land, Perry loaned Fisher the money in the form of a Cashier’s Check drawn on the Bank of Sulphur Springs in favor of Mrs. Dominguez for the $1,600.00, took a satisfaction of the old mortgage from her and took a new mortgage from Fisher to secure the latter loan, all in one and the same transaction.
It was the intention of all parties that the bank should have the same security as Mrs. Dominguez, who had paid Perry the full purchase price of the land and the bank had paid her in full all she paid. Fisher had never put a cent in the venture. Under this state of facts equity would require that the bank be subrogated to the rights of Mrs. Dominguez to foreclose the mortgage. Even if the Schilling judgment is good, which we do not determine, equity will not permit it to displace a purchase money mortgage. This disposition leaves the holder of the judgment in no worse position than if the lien of Mrs. Dominguez had not been discharged.
In Federal Land Bank of Columbia v. Godwin et al., 107 Fla. 537, 145 So. 883, we treated the doctrine of subrogation grounded on facts controlling the case at bar so the judgment below is affirmed on authority of that case. See also Federal Land Bank of Columbia v. Dekle decided March 3rd, 1933.
Affirmed.
Davis, C. J., and Whitfield, Brown and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
S. Colonial Mortg. Co., Inc. v. Medeiros, 347 So. 2d 736 (Fla. 4th DCA 1977)…t. . United of Florida, Inc. v. Illini Federal Savings & Loan Association, 341 So. 2d 793 (Fla.2d DCA 1977). . Id. . Federal Land Bank of Columbia v. Godwin, 107 Fla. 537, 145 So. 883, at 885 (1933). Also see Schilling v. Bank of Sulphur Springs, 109 Fla. 181, 147 So. 218 (1933); Forman v. First Nat. Bank, 76 Fla. 48, 79 So. 742 (1918); For-tenberry v. Mandell, 271 So. 2d 170 (Fla.4th DCA 1972); G. Glenn, Glenn on Mortgages § 340 (1943). But compare Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916). . Fed…
-
Bancflorida v. Hayward, 689 So. 2d 1052 (Fla. 1997)…uld preserve the same security it held for its earlier loan. Under these circumstances, the bank was entitled to the priority established by its original mortgage under the doctrine of equitable subrogation. In Schilling v. Bank of Sulphur Springs, 109 Fla. 181, 147 So. 218 (1933), a third-party purchase money mortgage was utilized by the mortgagor to acquire certain property. Three years later, the purchase money mortgage matured, and the mortgagor went to the bank in order to obtain a mortgage loan to sa…
-
Sarmiento v. Stockton, 399 So. 2d 1057 (Fla. 3d DCA 1981)…e vendor but in favor of a third party. The appellant’s contention is without merit and this case will be affirmed on the authority of Associates Discount Corporation v. Gomes, 338 So. 2d 552 (Fla.3d DCA 1976); Shilling v. Bank of Sulphur Springs, 147 So. 218 (Fla.1933); Cheves v. First National Bank of Gainesville, 79 Fla. 34, 83 So. 870 (1920); 2 Boyer, Florida Real Estate Transactions, § 32.04(1). In the latter authority, the following is found: “As long as it is executed in conjunction with the pur…
Authorities Cited
- The Fed. Land Bank of Columbia v. Godwin, 107 Fla. 537 (Fla. 1931)