HAROLD M. WARREN, ET UX., AND MARK C. MEACHER,
v.
SEMINOLE BOND & MORTGAGE COMPANY, AND C. A. AVANT, AS TRUSTEES AND EDGAR J. WARREN
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This case involves a foreclosure action on a trust deed where the note was assigned to Dorothy Morgan before maturity. The Florida Supreme Court affirmed the lower court's decree, holding that Dorothy Morgan, as the owner of the secured note, is entitled to enforce the security interest despite the original trustee's assignment.
Dorothy Morgan, as the owner of the notes secured by the trust deed, is entitled to the benefits of the security because the security follows the note. The lower court properly exercised its authority to allow amendments to the pleadings pursuant to the Supreme Court's mandate on remand.
“It is well settled that the security follows the note and, therefore, Dorothy Morgan, being the owner of the note, is entitled to the benefits of the security.”
Establishes the foundational principle that the assignee of a secured note is entitled to enforce the security interest.
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Join FLexlaw to unlock all legal intelligenceSeminole Bond & Mortgage Company was the trustee authorized to foreclose a lien created by a trust deed. The trustee assigned the notes secured by the…
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This case is before us on appeal from final decree entered after the case had been reversed by this Court. See Warren, et al., v. Seminole Bond & Mortgage Co., et al., 112 Fla. 363, 151 Sou. 291.
The mandate, pursuant to the opinion and judgment in that case, contained the following:
“You Are Hereby Commanded, That such further proceedings be had in said cause as according to right, justice, the judgment of said Supreme Court, and the laws of the State of Florida, ought to be had, the said decree .of the Circuit Court notwithstanding.”
After the mandate went down the court allowed amendment of pleadings and took further testimony. One of the amendments allowed was the intervention of Dorothy Morgan, joined by her husband, Walter L. Morgan, Walter L. Morgan being only a nominal party.
The record now shows that the instrument being foreclosed was in the nature of a trust deed; that Seminole Bond & Mortgage Co. was the trustee authorized to foreclose the lien created by the trust deed but that it had assigned for value, and before maturity, the notes, the payment of which were secured by the trust deed to Dorothy Morgan. It is well settled that the security follows the note and, therefore, Dorothy Morgan, being the owner of the note, is entitled to the benefits of the security.
One of the cases upon authority of which the decree in this case on the former appeal was reversed was McCullough, et ux, v. Hill, 105 Fla. 680, 133 Sou. 846, on rehearing, 145 Sou. 259. In that case we held:
“When a defendant sets up usury as a defense, the burden of proof is on him to establish it; but when the usury is proven the burden of proving that the holder of usurious *109paper purchased it before maturity without notice of the usury, is upon the party relying on such purchase.”
Under the mandate issued in this case hereinbefore referred to the Circuit Court had the power to allow the amendments to the pleadings which are complained of now. When the pleadings were, so amended the result to be had depended upon the probative force to be given to the testimony introduced under the issues as then presented. Testimony was taken under the issues as presented and in the record thereof we find ample testimony to support the findr ings of the Chancellor.
There is a motion pending to strike portions of the transcript. That motion is denied.
Other motions to dismiss the appeal heretofore have been disposed of.
The decree should be affirmed and it is so ordered.
Affirmed.
Ellis, C. J., and Whitfield, Terrell, Brown, and Davis, J." J., concur.
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Chem. Residential Mortg. v. Rector, 742 So. 2d 300 (Fla. 1st DCA 1998)…e appellant’s motion to amend the final judgment of foreclosure and set a new sale date, and determine a reasonable appellate attorney fee. DAVIS, J. and SHIVERS, DOUGLASS B., Senior Judge, concur. . See, Warren v. Seminole Bond & Mortgage Co., 127 Fla. 107, 172 So. 696 (1937); Johns v. Gillian, 134 Fla. 575, 184 So. 140 (Fla.1938); American Central Ins. Co. v. Whitlock, 122 Fla. 363, 165 So. 380 (1936); Collins v. W.C. Briggs, Inc., 98 Fla. 422, 123 So. 833 (1929); Drake Lumber Co. v. Semple, 100 Fla.…
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Case v. Smith, 146 Fla. 340 (Fla. 1941)…s now before the court are negotiable and the mortgage is incidental thereto, and Dr. Vinson had a lawful right to assign or transfer the same. See American Central Ins. Co. v. Whitlock, 122 Fla. 363, 165 So. 380; Warren v. Seminole Bond & Mtg. Co., 127 Fla. 107, 172 So. 696. The law provides a forum for the decision of such controversies and disputes and the record fails to show the lower court passed on or decided the merits of the case on the issues then made by the parties. It merely entered an order of…
Authorities Cited
- McCullough v. Hill, 133 So. 846 (Fla. 1931)
- Warren v. Seminole Bond & Mortg. Co., 112 Fla. 363 (Fla. 1933)