R. R. PREVATT, ET UX.,
v.
THE FEDERAL LAND BANK OF COLUMBIA
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In this mortgage foreclosure case, the Florida Supreme Court affirmed the trial court's denial of the defendant mortgagors' motion to dismiss a foreclosure complaint filed by the Federal Land Bank of Columbia. The court resolved whether a guarantor or co-maker of the underlying note must be made a party defendant to a mortgage foreclosure action.
A guarantor is not a necessary and indispensable party to a mortgage foreclosure suit. A co-maker or endorser of a note is not a necessary party to a foreclosure action unless such party has an interest in the mortgaged property, because a deficiency decree can only be entered against the mortgagor and not against non-mortgagor parties.
“This question has been long settled in this jurisdiction adversely to the contention of the appellant.”
Establishes that Florida law had already determined that guarantors are not necessary parties to foreclosure actions
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Join FLexlaw to unlock all legal intelligenceThe Prevatts executed a mortgage to secure a note. The record as amended by stipulation showed that the note was guaranteed by Lake Butler National Fa…
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The appeal brings for review order denying motion to dis'miss bill of complaint.
*465The appellant presents four questions for our consideration as follows:
“1. Where it appears from the bill of complaint that the original mortgagors have parted with their interest in the mortgaged premises, can the mortgage be foreclosed against them as sole defendants?”
“2. Where a mortgage is' executed to secure a note executed by the mortgagors and another as co-makers, is the co-maker of the note a necessary party defendant to the foreclosure ?”
“3. Where the mortgagors ‘and/or their successors in interest’ default in the-performance of a mortgage securing a note executed by the mortgagors and another as co-makers, can the maturity of the debt be accelerated and the mortgage foreclosed in a suit against the mortgagors only ?”
“4. Are the allegations of the bill of complaint repugnant where it, and the mortgage made a part thereof, described the indebtedness secured as the note of the defendants only, and the copy of the note made a part of the bill of complaint is the note of defendants and another as comakers ?”
There is no foundation for the first question presented because the bill of complaint does not show that the original mortgagors have parted with their interest in the mort-. gaged premises. If it should be a fact that they have, then the proper method of attack is by plea of non-joinder of parties or motion for compulsory amendment, such motion showing how and why the amendment should be made.
In response to the second question, we would first call attention to the fact that under the showing made by the record as amended by stipulation, the note was not executed by a co-maker with the Prevatts, but was guaranteed by Lake Butler National Farm Loan Association and, there*466fore, the question is whether or not a.guarantor is a,necessary and indispensable party to a suit to foreclose a mortgage. This question has been long settled in this jurisdiction adversely to the contention of the appellant. See Younghusband v. Fort Pierce Bank & Trust Co., 100 Fla. 1088, 130 Sou. 725; Delbeck Investment Co. v. Raff, 102 Fla. 942, 136 Sou. 683.
Whether the party not made a defendant in this suit was a co-maker or an endorser can make but little difference, unless' the record shows that such co-maker or endorser had some interest in the property mortgaged. This is true because a deficiency decree cannot be entered either against a co-maker or an endorser who is not a party to the mortgage. The statute authorizes a deficiency decree to be entered only against the mortgagor. Therefore, it follows that where a co-maker or endorser has no interest in the mortgaged property he is not a necessary party to the suit to foreclose. See Vansant v. Duval Cattle Co., 116 Fla. 159, 156 Sou. 369.
We have carefully considered the 3rd and 4th questions presented and the brief of the appellant in connection therewith and find no ground for reversal. There being no reversible error disclosed by the record, the order appealed from should be, and is now affirmed.
Ellis, C. J., and Terrell, J., concur.
Whitfield, P. J., and Brown and Chapman, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Degge v. The First State Bank of Eustis, 145 Fla. 438 (Fla. 1941)…order denying the deficiency against the bank. In this case the chancellor was guided in his decision by the decisions of this Court. Reves, et al., v. Younghusband, 101 Fla. 165, 133 So. 618; Prevatt, et ux., v. The Federal Land Bank of Columbia, 129 Fla. 464, 176 So. 494. In [*441] these cases this Court held that equity was without power to enter a deficiency decree in a mortgage foreclosure against the endorser of the mortgage note in the absence of 'a statute or rule of Court authorizing it. It borde…
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C.A. Hobbs, Jr. v. Fla. First Nat'l Bank of Jacksonville, 480 So. 2d 153 (Fla. 1st DCA 1985)…, JJ., concur. .Prior to 1941, endorsers on a mortgage note were not proper parties to a foreclosure action when they were not also parties to the mortgage or did not otherwise have an interest in the land. Prevatt v. Federal Land Bank of Columbia, 129 Fla. 464, 176 So. 494 (1937). However, in Degge v. First State Bank of Eustis, 145 Fla. 438, 199 So. 564, 565 (1941), the Supreme Court receded from this view, reasoning that since an endorser holds an adverse interest to the mortgagee, the law should not sa…
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Cukierman v. Bankatlantic, 89 So. 3d 250 (Fla. 3d DCA 2012)…tionally, a guarantor of a mortgage note who has no interest in the mortgaged property, although a proper party, is not a necessary party to an action to foreclose the mortgage. See § 46.041, Fla. Stat. (2009); Prevatt v. Fed. Land Bank of Columbia, 129 Fla. 464, 176 So. 494 (1937). Generally, guarantors are included in foreclosure actions to facilitate enforcement of the guaranty if the sale of the collateral is insufficient to satisfy the debt. See L.A.D. Prop. Ventures, Inc. v. First Bank, 19 So. 3d 1126…
Authorities Cited
- Younghusband v. Fort Pierce Bank & Tr. Co., 100 Fla. 1088 (Fla. 1930)
- Delbeck Inv. Co. v. Raff, 102 Fla. 942 (Fla. 1931)
- Van Sant v. Duval Cattle Co., 116 Fla. 159 (Fla. 1934)