LAURA B. O'BRYAN, ET VIR. (DEFENDANTS BELOW),
v.
DR. P. PHILLIPS & SONS, INC., (COMPLAINANT BELOW), ET AL.
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The Florida Supreme Court affirmed a judgment quieting title in favor of Dr. P. Phillips & Sons, Inc. against Laura B. O'Bryan and Lewis O'Bryan, who claimed title through a quit claim deed executed after a foreclosure suit and lis pendens notice. The court held that the O'Bryans were purchasers pendente lite, bound by the foreclosure sale, and were estopped from asserting their claim after permitting the appellee to make valuable improvements and waiting over seven years to challenge.
The O'Bryans do not have valid title. As purchasers pendente lite with notice of the foreclosure suit through the lis pendens, they were bound by the foreclosure sale. Dr. P. Phillips & Sons, Inc.'s title ripened through adverse possession, and the O'Bryans are estopped from asserting their claim after permitting valuable improvements and waiting more than seven years to bring suit.
“They were consequently purchases pendente lite and were on notice of the foreclosure sale by appellee and were bound by it.”
Establishes that the O'Bryans' quit claim deed, being executed after the lis pendens was filed, made them purchasers pendente lite with constructive notice, binding them to the foreclosure sale.
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Join FLexlaw to unlock all legal intelligenceEthel Ray Pinski sold land in Osceola County to Frank M. Butt via purchase money mortgage in 1925. Butt sold to W. J. O'Leary, who sold to Tiffany Rea…
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Prior to June 15, 1925, Ethel Ray Pinski sold certain lands in Osceola County to Frank M. Butt, who made a cash payment and executed his purchase money mortgage describing the lands purchased to secure deferred payments. Butt sold the same lands to W. J. O’Leary, who in turn sold them to Tiffany Realty Company, each making a cash payment and a mortgage back to secure deferred payments.
The first mortgage executed by Butt in favor of Ethel Ray Pinski matured and not being paid she brought suit March 24, 1927, to foreclose making Butt, O’Leary, and Tiffany Realty Company parties defendant. A notice of Us pendens was filed in Osceola County at the time the suit to foreclose was instituted. The cause proceeded to final decree August 27, 1927. A. C. Slaughter purchased the lands at foreclosure. The sale was confirmed and on October 10, 1927, Slaughter conveyed said lands to Ethel Ray Pinski who on October 14, 1927, conveyed them to appellee, Dr. P. Phillips & Son, Inc., a Florida corporation.
On December 3, 1934, Dr. P. Phillips & Sons, Inc., exhibited its bill of complaint in the Circuit Court of Osceola County to quiet its title to said lands. Frank M. Butt, W. J. O’Leary, Laura B. O’Bryan, and Lewis O’Bryan, her *304husband, were made parties defendant. Laura B. and Lewis O’Bryan moved to dismiss the bill which was denied. They then filed their answer in which was incorporated a counterclaim. A motion of complainant to strike the counterclaim and portions of the answer was granted from which order the present appeal was prosecuted. The order denying the motion to dismiss and the order striking portions of the answer and counterclaim are assigned as error.
The appellants claim title to the lands by virtue of a quit claim deed executed to them by Tiffany Realty Company, March 8, 1927, and recorded in Osceola County, June 15, 1927. It is contended that as against appellants, appellee has not been in adverse possession of the premises and that appellants should be awarded reasonable compensation for the use of the premises by appellee.
The record in the case and contention of appellants have been thoroughly considered. We fail to find sufficient basis to uphold the claim of appellants. The quit claim deed from Tiffany Realty Company to Laura B. O’Bryan is their sole reliance to support title and it was executed after the suit and notice of lis pendens of Ethel Ray Pinski to foreclose was instituted and filed. They were consequently purchases pendente lite and were on notice of the foreclosure sale by appellee and were bound by it. Not only that but they permitted appellee to make valuable improvements on the land and waited more than seven years after the purchase by appellee when it had brought suit to quiet title before asserting their claim. Under these circumstances appellee’s title having ripened by adverse possession they are now es-topped to assert any claim against the lands in controversy. Ray v. Hocker, 65 Fla. 265, 61 So. 500.
It follows that the judgment of the Circuit Court must be and is hereby affirmed.
*305Affirmed.
Ellis, P. J., and Terrell and Buford, J. J., concur.
Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.
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Andresix Corp. v. Peoples Downtown Nat'l Bank, 419 So. 2d 1107 (Fla. 3d DCA 1982)…. Greenwald v. Graham, 100 Fla. 818, 130 So. 608 (1930); Intermediary Finance Corporation v. McKay, 93 Fla. 101, 111 So. 531 (1927); Peninsular Naval Stores Company v. Cox, 57 Fla. 505, 49 So. 191 (1909). See O’Bryan v. Dr. P. Phillips & Sons, Inc., 123 Fla. 302, 166 So. 820 (1936). Cf. Nelson Bullock Co. v. South Down Development Co., 132 Fla. 495, 181 So. 365 (Fla.1938); Freligh v. Maurer, 111 So. 2d 712 (Fla. 2d DCA 1959); Dutcher v. Haines City Estates, Inc., 26 F. 2d 669 (5th Cir. 1928) (intervention a…
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Nat'l Bank OF Sarasota v. Dugger, 335 So. 2d 859 (Fla. 2d DCA 1976)…We have been unable to find a case from Florida, or any other jurisdiction, in which the precise issue presented here was considered and decided. The trial court found that the question was governed by O'Bryan v. Dr. P. Phillips & Son, Inc., 1936, 123 Fla. 302, 166 So. 820. In O’Bryan a quitclaim deed was executed two weeks before notice of lis pendens was filed, but the deed was not recorded until j after the notice was filed. The Supreme Court of Florida held that the holders of the deed were bound by t…
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Freligh v. Maurer, 111 So. 2d 712 (Fla. 2d DCA 1959)…have the effect of establishing a priority as against the equity of the intervenor. It is noted that appellee did not sue out an attachment in aid of the equitable lien which he sought to establish. Appellee cites O’Bryan v. Dr. P. Phillips & Sons, 123 Fla. 302, 166 So. 820, in support of the proposition that the filing of a lis pendens is sufficient to establish a priority over any third person who has not recorded his interest. In that case the plaintiff filed a lis pendens in a foreclosure pro [*715] ce…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ray v. Hocker, 65 Fla. 265 (Fla. 1913)