MAX ISRAEL, APPELLANT,
v.
JOHN E. BEAN, APPELLEE
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Max Israel appealed a foreclosure decree on a purchase money lien, challenging the trial court's award of $215 in solicitor's fees. The Florida Supreme Court held that attorney's fees provisions in the underlying note constitute contract indemnity not secured by the purchase money lien itself, and therefore cannot be recovered through foreclosure.
The court held that attorney's fees provisions in a promissory note constitute a contract for indemnity separate from the purchase money lien. Such fees are not secured by the purchase money lien and therefore cannot be recovered through foreclosure proceedings; only the balance due on the purchase price, interest, and court costs incident to enforcing the lien may be recovered.
“such lien existed only to the extent of the balance due on the purchase price of the property against which the lien was claimed, together with interest thereon with the court costs incident to enforcing the lien”
Establishes the scope of what a purchase money lien covers
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Join FLexlaw to unlock all legal intelligenceIsrael sought to foreclose a purchase money lien against Bean for the balance due on the purchase price of property. The underlying note contained a p…
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Buford, J.
This cause having heretofore been submitted to the Court upon the transcript of the record of the decree herein, and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the Court being noAV advised of its judgment to be given in the premises, it seems to the Court that there is error in the said decree in so far as it alloAvs a solicitor’s fee of $215.00.
This was a suit to foreclose a purchase money lien and such lien existed only to the extent of the balance due on the purchase price of the property against which the lien Avas claimed, together with interest thereon with the court costs incident to enforcing the lien, but did not extend to and make available in behalf of the complainant a provision contained in the note evidencing the indebtedness that the maker under certain conditions should pay a reasonable attorney’s fee. This provision in the note was a contract for indemnity. See Brett v. First National Bank of Marianna, and Brooks v. Roberts, both decided at this term of this Court. The payment of this contracted indemnity is not secured by the lien for purchase money here sought to be enforced. It is ordered that the provision in the decree requiring the defendant to pay the sum of $215.00 as solicitor’s fee for the services of complainant’s solicitors be stricken from the final decree and that the decree be affirmed in other respects.
Inasmuch as the decree appealed from was erroneous in requiring the payment of solicitors’ fees and the appellant Avas entitled to relief from this provision of the decree, the costs incident to the appeal should be taxed against the appellee and it is so ordered.
Affirmed in part and remanded. Whitfield, P. J., and Strum, J., concur. Terrell, C. J., and Ellis and Brown, J. J., concur in the opinion and judgment.
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Kendall E. Ests., Inc. v. David P. Banks & Joan S. Banks, 386 So. 2d 1245 (Fla. 3d DCA 1980)…ce with the July 20, 1978 contract itself. The attorney’s fee provision, by its own terms, therefore did not apply. See, Fred Howland, Inc. v. Gore, 152 Fla. 781, 13 So. 2d 303 (1943); Drew v. Hobbs, 104 Fla. 427, 141 So. 596 (1932); Israel v. Bean, 97 Fla. 636, 121 So. 806 (1929); Wing, Inc. v. Arnold, 107 So. 2d 765 (Fla. 3d DCA 1958). The judgment below is affirmed with the exception of the denial of costs and attor [*1248] ney’s fees to the plaintiff-appellant and the cause is remanded for the assessm…