ROBERT W. GRIER, APPELLANT,
v.
M. H. C. REALTY CORPORATION, A COLORADO CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, AND MOBILE HOME COMMUNITIES, A COLORADO TRUST, APPELLEES
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The court affirmed the trial court's judgment that the mortgage's acceleration provision controls over the note's acceleration provision when the two instruments are construed together, as the mortgage explicitly stated it prevails over conflicting note provisions.
When a note and mortgage are simultaneously executed for the same transaction, the mortgage's acceleration provision controls over the note's conflicting provision when the mortgage explicitly states it prevails.
[1] When a note and mortgage are simultaneously executed for the same transaction and contain conflicting provisions, the instruments must be construed together, and a mortga…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“When these two instruments are construed together, as they should be...the provision of the mortgage controls the provision of the note relative to acceleration since the mortgage specifically provides 'anything in said note or herein to the contrary notwithstanding'.”
The trial court's reasoning, quoted with approval by the appellate court, explaining why the mortgage provision controls.
Grier appealed a trial court judgment regarding acceleration rights under a note and mortgage executed by the parties to M.H.C. Realty Corporation and…
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We have reviewed the briefs and record on appeal and heard oral argument. We are of the opinion that the trial court correctly construed the note and mortgage in question and quote with approval the following language contained in the final judgment:
“There does not appear to be any genuine issue of fact with regard to the acceleration rights of the plaintiff. When these two instruments are construed together, as they should be, Spadaro v. Baird [97 Fla. 50], 119 So. 788; Webster v. 759 Riverside Ave. [113 Fla. 8], 151 So. 276; Oates v. Prudential Ins. Co. [107 Fla. 224], 144 So. 418; 4A Fla.Jur., Bills, notes, etc., Sec. 58; Erwin v. Crandell [Crandall] [129 Fla. 45], 175 So. 862; Sec. 673.3-119 FSA, it seems clear the provision of the mortgage controls the provision of the note relative to acceleration since the mortgage specifically provides ‘anything in said note or herein to the contrary notwithstanding’.
“Unquestionably, plaintiff can sue on the note without foreclosing the mortgage, as they are distinct agreements, Taylor v. American National Bank [63 Fla. 631], 57 So. 678. But where there are provisions in two instruments, simultaneously executed and pertaining to the same transaction, which limit, explain or otherwise affect the provisions of the other, they should be construed together so that the intent of the parties can be determined and carried out. Taylor v. American National Bank, . . . ”
See also Mager v. Abrams, Fla.App.1958, 109 So.2d 386.
Accordingly, the judgment of the trial court is affirmed.
WALDEN, CROSS and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Land O'Sun Realty Ltd. v. Rewjb GAS Invs., 685 So. 2d 870 (Fla. 3d DCA 1996)…ing in Quiring. KRC Enterprises, Inc. v. Soderquist, 553 So. 2d 760, 761 (Fla. 2d DCA 1989) (emphasizing the specific language "anything in said promissory note or herein to the contrary notwithstanding” as prevailing); Grier v. M.H.C. Realty Corp., 274 So. 2d 21 (Fla. 4th DCA 1973) (finding a provision of a mortgage controlling over a provision of a simultaneously executed note because of the clarity of the mortgage provision, which specifically provided "anything in said note or herein to the contrary notw…
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The Bank OF NEW York Mellon under Novastar Mortg. Funding Tr. v. Reyes, 126 So. 3d 304 (Fla. 3d DCA 2013)…may discard the mortgage entirely, and sue and recover on the note.” Taylor v. Am. Nat’l Bank of Pensacola, 63 Fla. 631, 57 So. 678, 685 (1912) (quoting Thorpe v. Mindeman, 123 Wis. 149, 101 N.W. 417 (1904)). See also Grier v. M.H.C. Realty Corp., 274 So. 2d 21, 22 (Fla. 4th DCA 1973) (confirming that suit may be brought on a note without foreclosing a mortgage “as they are distinct agreements” (quoting Taylor, 57 So. at 678)). Thus even if the counterclaim had stated a cause of action for rescission of th…
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KRC Enters., Inc. v. Soderquist, 553 So. 2d 760 (Fla. 2d DCA 1989)…specifically provided that “anything in said promissory note or herein to the contrary notwithstanding.” Thus, the mortgage, providing for acceleration at the mortgagee’s option, prevails over the language in the note. Grier v. M.H.C. Realty Corp., 274 So. 2d 21 (Fla. 4th DCA 1973). Therefore, the five year statute of limitations had not run. Appellee relies on Baader v. Walker, 153 So. 2d 51 (Fla. 2d DCA), cert. denied, 156 So. 2d 858 (Fla.1963), in which the court held that an acceleration clause identic…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- L. Maxcy, Inc. v. Fed. Land Bank of Columbia, 111 Fla. 116 (Fla. 1933)
- Taylor v. Am. Nat'l Bank of Pensacola, 63 Fla. 631 (Fla. 1912)
- Spadaro v. J. W. Baird for John C. Hinkson, 97 Fla. 50 (Fla. 1929)
- Webster v. 759 Riverside Ave., Inc., 113 Fla. 8 (Fla. 1933)
- Oates v. The Prudential Ins. Co. of Am., 107 Fla. 224 (Fla. 1932)
- Anne Olive Erwin and C. E. Garrett v. Crandall, 129 Fla. 45 (Fla. 1937)
- Mager v. Maynard Abrams, 109 So. 2d 386 (Fla. 2d DCA 1958)