A. A. KIND, ET AL.,
v.
A. BRUCE MANLEY AND HATTIE W. MANLEY, HIS WIFE, BY A. BRUCE MANLEY, HER HUSBAND, AND NEXT FRIEND
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This case addresses whether a tenant in common who purchases a mortgage lien on the entire property can foreclose against their co-tenant's share for half the debt. The court held that such a foreclosure is permissible, applying equitable principles.
Yes, a tenant in common who purchases a mortgage lien against the whole estate can foreclose against the co-tenant's interest for half the mortgage debt, subject to equitable principles.
“where one tenant in common purchases a mortgage lien against the whole estate will he be allowed to foreclose against the one half interest of his co-tenant for one half of the mortgage debt?”
This quote states the central legal question before the court.
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Join FLexlaw to unlock all legal intelligenceOne tenant in common purchased a mortgage lien that encumbered the entire property held in common. The co-tenant's interest was one half of the estate…
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This is an appeal from a final decree for plaintiff.
The only question which merits an opinion is: where one tenant in common purchases a mortgage lien against the whole estate will he be allowed to foreclose against the one half interest of his co-tenant for one half of the mortgage debt?
Our attention has been called to no precedent in this state. The law seems settled upon logic and good reason that where one tenant in common acquires an equitable estate in the property held in common that the equitable estate merges in the legal title to the extent of the legal title owned by the purchaser of the equitable estate. There is no merger or alteration of the remainder of the equitable estate however, and it may be enforced against the cotenant’s legal title subject to equitable principals as. if it had not been transferred from the prior holder. Thompson on Real Property (Perm. ed. 1940) Vol. 4, Section 1871; Ibid, *439Vol. 9, Section 5041; 14 Am. Jur. Cotenancy, Section 45; 13 Am. Jur. Contribution, Section 75; Jones on Mortgages (8th ed. 1928) Vol. 2, Section 1362; Wiltsie, Mortgage Foreclosure (5th ed. 1939) Vol. 3, Section 1192; 62 C. J. 473; 18 C. J. S. 13. See also Walker v. Sarven, 41 Fla. 210, 25 So. 885.
It is our conclusion that the chancellor answered the above question correctly in the affirmative. In reaching this conclusion we have not overlooked appellants contention that there are factual conditions which take this case out of the general rule. We find no facts in the record for such claim.
Other questions raised have been duly considered by us and found without merit.
The decree is affirmed.
BROWN, C. J., WHITFIELD, and BUFORD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wescott v. Amerifirst Fed. Sav. & Loan Ass'n, 564 So. 2d 166 (Fla. 5th DCA 1990)…ontention. It appears that, under Florida law, where one tenant in common purchases a mortgage lien against the whole estate, he is allowed to foreclose against the one-half interest of his cotenant for one-half of the mortgage debt. Kind v. Manley, 150 Fla. 437, 7 So. 2d 593 (Fla.1942). Thus, if Nichols were both the co-tenant and the holder of the first mortgage, he should only have been allowed to foreclose to the extent of one-half the debt. The key issue thus becomes whether the trust established by Ni…
Authorities Cited
- Walker v. Sarven, 41 Fla. 210 (Fla. 1899)