KATE E. HARPER, JOINED BY HER HUSBAND AND NEXT FRIEND, THOMAS J. HARPER, APPELLANTS,
v.
W. A. GREEN AND MAY GREEN, HIS WIFE, AYLETT L. WOOD AND HER HUSBAND, L. P. WOOD, RALPH C. BULLOCK AND JOSEPHINE A. BULLOCK, HIS WIFE, CHARLES BARROW, A. PHILLIPS, KELLY INVESTMENT COMPANY, A FLORIDA CORPORATION, BANK OF BAY BISCAYNE, A FLORIDA CORPORATION, APPELLEES
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The Florida Supreme Court affirmed the dismissal of a mortgage foreclosure bill because the original note was lost and not re-established, preventing the complainants from proceeding with foreclosure.
Yes, the dismissal of the bill of complaint was proper. The complainants failed to re-establish the lost note, which is a prerequisite for foreclosing on the mortgage.
“Upon final hearing the chancellor dismissed the-bill without prejudice.”
Describes the outcome in the lower court.
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Join FLexlaw to unlock all legal intelligenceAppellants filed a bill of complaint to foreclose a mortgage. The original note, which the mortgage secured, was lost due to a hurricane. The complain…
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Bupord, J.
In this case the appellants filed bill of complaint to foreclose mortgage. Upon final hearing the chancellor dismissed the-bill without prejudice. The bill was dismissed because the complainants failed to introduce in evidence the original note to secure the payment of which the mortgage was given. It may be inferred from the evidence that the note was lost. In fact, the witness testified that the note and mortgage were in a desk on his front porch when the hurricane of 1926 tore up his desk and blew away his papers.
The bill of complaint did not contain apt allegations, nor a prayer upon which to base an order re-establishing the lost papers.
There was no evidence in the record to show that any proceedings had been had re-establishing the lost papers.
Under this state of facts, the chancellor entered the proper order in dismissing the bill of complaint without prejudice, the effect of which was to give the complainants the opportunity of re-establishing their lost papers and then proceeding in a legal and orderly manner to foreclose the same.
The decree of the chancellor should be affirmed and it is so ordered.
Affirmed.
Whitfield, P. J., and Strum, J., concur. Terrell, C. J., and Ellis, J., concur in the opinion and judgment.
Brown, J., disqualified.
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Am. Fire & Cas. Co. v. Collura, 163 So. 2d 784 (Fla. 2d DCA 1964)…equirement will involve extreme forfeiture or penalty. Restatement of Contracts, § 302. Forfeitures are not favored either in law or equity, and the courts should avoid them if possible. Accord: Baker v. Clifford-Mathew Inv. Co., 1930, 99 Fla. 1229, 128 So. 827; Hemphill v. Pesat, 1929, 98 Fla. 124, 123 So. 561. Considering the circumstances in the Ranson case, the proposition was correctly stated there, that where the policy contains a clause requiring that notice of an accident be given “as soon as pract…
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