THEO. M. BRUSH, APPELLANT,
v.
THE BARNETT NATIONAL BANK OF COCOA, A CORPORATION, APPELLEE
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.
In this mortgage foreclosure case, the Florida Supreme Court held that a mortgagee may recover a reasonable attorney's fee under the mortgage clause even when the underlying promissory notes limit attorney's fees to ten percent, because mortgage foreclosure contemplates reasonable compensation for actual services rather than a penalty for non-payment.
The court held that the mortgagee may recover reasonable attorney's fees under the mortgage clause without being limited to the ten percent cap in the notes, because the parties likely intended different fee standards for actions on the notes alone versus chancery foreclosure proceedings, and because mortgage foreclosure cases contemplate reasonable compensation for actual services as indemnity rather than penalties.
“it is easily conceivable that where a note and mortgage are both given, the intent of the parties may well have been to limit attorney's fees to ten per cent, where suit is on the note alone, whereas in a suit in chancery made necessary to foreclose the mortgage, the intent may well have been that a fee as a reasonable compensation for the actual services required, should be fixed”
Establishes the court's rationale for treating attorney's fees differently in mortgage foreclosure versus actions on the note alone.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceM. Theresa Brush executed a mortgage on real estate and two promissory notes to secure the debt. The mortgagor died intestate before the second note m…
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 Attorney'S Fees In Foreclosure cases and more on FLexlaw
A mortgage on real estate was given to secure the payment of two promissory notes'. One M. Theresa Brush was the mortgagor and it appears from the record that she died prior to the maturity of the second' note, leaving no will. Foreclosure was begun by the mortgagee against the heirs at law, no deficiency judgment being prayed. The Court awarded a final decree of foreclosure from which this appeal is taken.
Each of the notes' secured by the mortgage provided for an attorney’s fee of ten per cent while the mortgage itself contained a clause whereby the mortgagor agreed to pay all attorney’s fees reasonably incurred, without reference to any stipulated percentage. The notes having been recited and copied into the mortgage, appellant argues by reason of that fact, that the notes and mortgage must be construed together and that no attorney’s' fee in excess of ten per cent, as stipulated in the notes, was allowable. The Chancellor below allowed a reasonable attorney’s fee under the mortgage clause, disregarding the ten per cent, note limitation.
We think there was no error in that respect for two reasons: (1) it is easily conceivable that where a note and mortgage are both given, the intent of the parties may well have been to limit attorney’s fees to ten per cent, where suit is on the note alone, whereas in a suit in chancery made necessary to foreclose the mortgage, the intent may well *461have been that a fee as' a reasonable compensation for the actual services required, should be fixed; (2) because of our earlier decisions in those foreclosure cases wherein it has been held that in mortgage foreclosure cases, a reasonable attorney’s fee for purposes of indemnity only is contemplated, and that because of such fact an attorney’s fee provision in a mortgage must be always construed so as to avoid the idea that a provision for its payment is ever enforceable in equity as a charge in the nature of a penalty for mere non payment. See: Flournoy v. Smith, 84 Fla. 553, 94 Sou. Rep. 503; Brett v. First National Bank, 97 Fla. 284, 120 Sou. Rep. 554; Burns v. Harrison, 100 Fla. 1105, 131 Sou. Rep. 654; Porter v. Mo. Life Ins. Co., 105 Fla. 550, 141 Sou. Rep. 741.
The other propositions argued on the appeal have been duly considered but no special discussion of them is deemed necessary. There is nothing in the statutes relating to the payment of claims against the estate of an intestate until after six months from taking out letters of administration (Section 5606 C. G. L. 3734 R. G .S.) which precludes the foreclosure against the heirs at law of the mortgagor, if a mortgage given by the mortgagor in his lifetime, where no deficiency judgment against the estate is sought, as is the case here. Fremd v. Hogg, 68 Fla. 331, 67 Fla. 75; Section 5611 C. G. L., 3739 R. G. S. as amended.
Decree affirmed.
Davis, C. J., and Whitfield, Ellis, TeRRell, Brown and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Penn-Florida Hotels Corp. v. The Atl. Nat'l Bank of Jacksonville, 126 Fla. 344 (Fla. 1936)…iety, 102 Fla. 782, 136 Sou. Rep. 517; Hagan v. Neeb, 105 Fla. 297, 140 Sou. Rep. 916; Williams v. Dunn, 105 Fla. 327, 141 Sou. Rep. 190; Porter Interests v. Missouri State Life Ins. Co., 105 Fla. 550, 141 Sou. Rep. 741; Brush v. Barnett Natl. Bank, 110 Fla. 459, 140 Sou. Rep. 57; Ceraola v. Smith, 112 Fla. 399, 150 Sou. Rep. 611. The allowance of compensation to the Atlantic National Bank of Jacksonville for its services as trustee have not been shown to be so unreasonably low as to warrant a reversal on…
-
McKinley v. The Fed. Land Bank of Columbia, 128 Fla. 789 (Fla. 1937)…ayment of which: was secured by the mortgage and contained in'the mortgage'itself. - • • The question must be determined adversely to the'' ap.pellant on authority of the opinion and judgment in the .case of Brush v. Barnett National Bank of Cocoa, 110 Fla. 459, 149 Sou. 573, in which we held: “There is nothing in the statutes relating to the payment of claims against the estate of an intestate until after six months from taking out letters of administration (Section 5606 C. G. L., 3734 R. G. S) which pre…
Authorities Cited
- Brett v. The First Nat'l Bank of Marianna, 97 Fla. 284 (Fla. 1929)
- Berns v. Harrison, 100 Fla. 1105 (Fla. 1930)
- Flournoy v. Smith, 84 Fla. 553 (Fla. 1922)
- The Porter Interests of Fla., Inc. v. Mo. State Life Ins. Co., 105 Fla. 550 (Fla. 1932)
- Fremd v. Hogg, 68 Fla. 331 (Fla. 1914)