City Building & Loan Ass'n v. Tatum, 67 Fla. 485

City Building & Loan Ass'n v. Tatum

67 Fla. 485 | Fla. | 1914

Whitfield, J.

Johnson R. Tatum, Bethel B. Tatum, Judson H. Tatum and Smiley M. Tatum brought a bill in equity against the City Building and Loan Association and J. B. Anderson, as trustee in bankruptcy of the Florida Investment and Security Company, a bankrupt corporation. It is among other matters alleged that on July 10, 1911, the Florida Investment and Security Company and the City Building and Loan Association entered into a written agreement stipulating that the investment and security company has theretofore assumed and agreed to pay certain indebtedness against certain property owned by the Building and Loan Association, embraced in designated mortgages and contracts; that to secure the indebtedness, the investment and security company had on or about March 14, 1911, made, executed and delivered to the Building and Loan Association warranty deeds to certain described property, and assigned and transferred to the Building and Loan Association certain described real estate mortgages and contracts, with provision for applying collections and making reconveyances when the debt is paid; that on July 22, 1911, the Florida Investment and Security Company, as principal and Johnson R. Tatum, Bethel B. Tatum, Judson H. Tatum and Smiley M. Tátum as sureties to indemnify the Building and Loan *487Association against any breach of the contract aforesaid or the failure of the collateral security to satisfy the indebtedness to the Building and Loan Association, executed to the Building and Loan Association a penal bond in $10,000.00, reciting the agreement of the investment and security company to pay the above stated indebtedness, and stating the mortgages and contracts referred to in said agreement, the condition of the bond being to “well and truly pay the aforesaid described indebtedness on the aforesaid described property of the City Building and Loan Association;” that certain of the mortgages “specified and described as liabilities of the Florida Investment and Security Company in said contract, were not and never have been liabilities of the said Florida Investment and Security Company, as in the said contract alleged and set forth” and that “it was not the intention of the said Florida Investment and Security Company, or its officers, nor the City Building and Loan Association, or its officers, that the said Florida Investment and Security Company should by said contract assume any additional obligation to agree to pay or secure the payment of any liability against the property of the said City Building and Loan Association, which the said Florida Investment and Security Company was not already and theretofore liable and obligated to pay;” that “the said contract is not the contract or agreement intended to be executed and delivered by the said Florida Investment and Security Company and the said City Building and Loan Association, but is the result of a misapprehension and mistake as to the facts;” that the supposed liabilities and obligations of the Investment and Security Company to assume and pay off the indebtedness secured by mortgage upon the property of the Building and Loan Association as enumerated in the said *488contract and in said bond “arose out of the course of deal-' ings theretofore and for about two years conducted between the said Florida Investment and Security Company, and the said City Building and Loan Association, whereby the said Florida Investment and Security Company, being engaged in the business of buying, improving and selling real estate .had discounted, assigned and transferred to the said City Building and Loan Association several dioses in action in the nature of contracts for the purchase of real estate executed by various persons to the said Florida Investment and Security Company, mortgages upon real estate and sale of such lands of the Florida Investment and Security Company to the City Build ing and Loan Association upon which mortgages were outstanding, some of which mortgages were by the said City Building and Loan Association agreed to be assumed and paid off, and some of which mortgages the said Florida Investment and Security Company agreed to pay off and satisfy, and for the purposes of securing the payment of said mortgage indebtedness by it the Florida Invest ment and Security Company agreed to be paid, the said Florida Investment and Security Company had on or about the 14th day of March, 1911, made, executed and delivered to the said City Building and Loan Association warranty deeds to several lots and parcels of real estate, situate, lying and being in Hillsborough County, Florida;” that actions have been brought against complainants on their said bond upon matters not intended by the parties thereto to be included in said bond. It is deemed unnecessary to make further statements from the lengthy pleadings. Reformation and accounting and ancillary injunctions are prayed.

An appeal was taken by the Building and Loan Association from orders granting a temporary injunction, *489overruling a demurrer to the bill of complaint and refusin to dissolve the injunction.

Upon a careful consideration of the transcript, it appears that under the allegations of the bill of complaint an equity for reformation or other proper relief may be shown and that an examination into at least some of the previous transactions and dealings of the parties may be. appropriate in determining the merits of the controversy and that an injunction is apparently proper in enforcing the rights of the parties, and it is deemed equitable and just that the orders appealed from be affirmed so that the chancellor may order such an accounting as may be neces sary to a proper final adjudication.

Affirmed.

Shackleford, C. J., and Taylor, Cockrell and Hock-er, J. J., concur.