CALL WEATHERSBEE AND OPAL WEATHERSBEE, HIS WIFE, APPELLANTS,
v.
MACK H. PADGETT AS RECEIVER OF THE CITIZENS BANK OF MAYO, A BANKING CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, APPELLEE
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The Florida Supreme Court affirmed a foreclosure decree but remanded for modification of the attorney's fees awarded, finding the evidence supported only a portion of the awarded amount.
Yes, the solicitor's fees awarded were excessive. The court held that only $122.55 was supported by the evidence and the issues in the case.
“Under the allegations of the bill and proof offered the complainant was only entitled to a decree for $122.55 as solicitor’s fees.”
This quote explains the court's finding regarding the excessive amount of solicitor's fees awarded.
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Join FLexlaw to unlock all legal intelligenceAppellants, Call Weathersbee and Opal Weathersbee, appealed a foreclosure decree. The mortgage's validity was not challenged, and evidence presented b…
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— This was a suit to foreclose a mortgage to enforce payment of indebtedness evidenced by a promissory note.
The validity of the mortgage was not attacked by plea or answer. The mortgage appears valid on its face. Evidence offered to support a defense of invalidity was properly rejected, or not considered, as it was outside the issues.
Under the allegations of the bill and proof offered the complainant was only entitled to a decree for $122.55 as solicitor’s fees. In all other respects the decree appears to be without error. The Chancellor is directed to modify the ■decree as to attorney’s fees, allowing therefor only the sum of $122.55, whereupon, the decree as so modified shall stand affirmed. It is so ordered.
Affirmed.
Ellis and Brown, J.J., concur.
Whitfield, P.J., and Terrell and Davis, J.J., concur in the opinion and judgment.
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Bellaire Sec. Corp. v. Brown, 124 Fla. 47 (Fla. 1936)…al amount. I got Seven Thousand Dollars of it.” Now we find from the record that when the mortgage from Brown to Cessna was' acquired by Howe he paid the money and took an assignment instead of a receipt. In Summer v. Osborne, et al., 101 Fla. 742, 135 Sou. 513, we said: “If money paid to the owner of a first mortgage is advanced by one whose duty it is, by contract or otherwise, to pay and cancel the first mortgage and also a second mortgage, and relieve the mortgaged premises' of the lien of the first m…
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Stanley v. Powers, 125 Fla. 322 (Fla. 1936)
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Walter J. Dolan Props., Inc. v. Vonnegut, 133 Fla. 854 (Fla. 1938)…s used, as on the relations subsisting between the parties advancing the money, and the party executing the transfer or release and their relative duties. Polk County National Bank v. Darrah, 52 Fla. 581, 42 So. 323; Sumner v. Osborne, 101 Fla. 742, 135 So. 513. A mortgage cannot be enforced on any other basis than that on which it was given. Sumner v. Osborne, 101 Fla. 742, 135 So. 513. When a debt secured by a mortgage has [*867] been paid the mortgage becomes functus officio and dead and it cannot be m…1 / 2
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