GRAY ROOFING COMPANY, INC., APPELLANT,
v.
DUVAL FEDERAL SAVINGS & LOAN ASSOCIATION OF JACKSONVILLE ET AL., APPELLEES
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Gray Roofing Company challenged a foreclosure decree that denied its equitable lien priority over Duval Federal's prior recorded first mortgage lien. The court affirmed the foreclosure decree, finding no error and rejecting Gray Roofing's estoppel argument.
Gray Roofing Company's equitable lien did not have priority over Duval Federal's prior recorded first mortgage lien. Duval Federal was not estopped from urging its prior recorded lien because there was no action by Duval Federal that caused Gray Roofing to change position to its detriment.
“the record fails to disclose any action on the part of Duval Federal, by and through its agents, which caused the appellant to change position to its detriment”
Establishes the test for estoppel and why Gray Roofing's estoppel claim failed
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Join FLexlaw to unlock all legal intelligenceGray Roofing Company entered into a contract to repair property that was encumbered by a recorded mortgage held by Duval Federal Savings & Loan. At th…
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This suit involves a final decree of foreclosure which determined that the appellant [the holder of an equitable lien] did not have priority over a prior recorded first mortgage lien. We find no error and affirm.
The final decree arrived in this court with a presumption of correctness [See: Rimer v. Mortgage Guarantee Corp., Fla.App.1964, 168 So.2d 549; City of Miami v. Bus Benches Co., Fla.App.1965, 174 So.2d 49], and it was incumbent upon the appellant to demonstrate error. See: Lynch v. Coppola, Fla.App.1961, 129 So.2d 183; Groover v. Simonhoff, Fla.App.1963, 157 So.2d 541; Rimer v. Mortgage Guarantee Corp., supra. The principal thrust of the appellant’s argument is that the appellee, Duval Federal, was estopped to urge its prior recorded lien. However, the record fails to disclose any action on the part of Duval Federal, by and through its agents, which caused the appellant to change position to its detriment. See: Boynton Beach State Bank v. Wythe, Fla.App.1961, 126 So.2d 283; Hallam v. Gladman, Fla.App. 1961, 132 So.2d 198. It is apparent that the roofing company had entered into a contract to repair the res encumbered by the recorded mortgage with the original mortgagor and, at the time of the inception of its contract, did not look to the holder of *75the first mortgage for payment of its contract. Nothing that occurred subsequently indicated that the first mortgage holder had assumed this responsibility, which would have been necessary in order to hold that they had relinquished their lien priority.
Therefore, the final decree here under review is hereby affirmed.
Affirmed.
RAWLS, C. J., SACK, J., and BARK-DULL, THOMAS H., JR., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nat'l Loan Invs., L.P. v. Carlton Burgher, 742 So. 2d 406 (Fla. 4th DCA 1999)…cing its rights under the mortgage without some other conduct would deprive the mortgagee of priority over subsequent liens. The facts of this case parallel those considered in Gray Roofing Co. v. Duval Federal Savings & Loan Ass’n of Jacksonville, 191 So. 2d 74 (Fla. 1st DCA 1966). In Gray, the court held that a mechanic’s lien did not have priority over a prior recorded mortgage in a foreclosure action because there was nothing in the record to indicate that the bank, by or through its agents, acted in an…
Authorities Cited
- Lynch v. Coppola, 129 So. 2d 183 (Fla. 2d DCA 1961)
- Rimer v. The Mortg. Guar. Corp., 168 So. 2d 549 (Fla. 3d DCA 1964)
- Groover v. Simonhoff, 157 So. 2d 541 (Fla. 3d DCA 1963)
- Willard v. Hallam, 132 So. 2d 198 (Fla. 2d DCA 1961)
- Boynton Beach State Bank v. Wythe, 126 So. 2d 283 (Fla. 2d DCA 1961)
- City OF Miami v. BUS Benches Co., 174 So. 2d 49 (Fla. 3d DCA 1965)