*1 vs. generally inferred, Wheeler title is marketable convey supra. covenanted to Sullivan, If vender had when good required to do but title have been could he convey subject merely to restrictions agrees he to sell and principal of agent of undisclosed made known to the dealing ex- nothing, which the the vendor vendor knew fully being clusively agent agent, advised with the commonly im- were such as are the restrictions which duty of property, posed protection it was principal, but agent make a full to his disclosure complain. far So principal cannot he failed to do so the rights of the vendor are concerned. pro- questions adjective or assignments raise Other fail to' find been examined but we law which have cedural committed. error was reversible consequently The decree below affirmed.
Affirmed. J., P.J. Davis,
Whitfield, concur. J., J.J., C. Buford, Brown, concur in and Ellis opinion judgment. Country Club, Inc., corporation,
Clermont-Minneola Percy Appellant, al., Appellees. vs. T. Coupland, So. 133.
En Banc. Opinion July 8, filed 1932. *2 Crittenden, for & Touchton,
T. C. Mitchell Cork, Appellant; Hunter, Appellee. W.
J. companion This is case Commissioner. Andrews, Country Loblaw, Club, Inc. v. that of Clermont-Minneola *3 appeal a al, filed the was taken from this term wherein County in a o'f the Circuit Court Labe final decree of mortgage parties, and the between foreclosure similar, are is here directed issues kindred and attention given pleadings in to the and facts involved in that case opinion case. bearing the instant the appeal deed in instant ease involves a tax the fore- by on property closure same instituted the same Com- appeal is plainant against same Defendants while the denying a of the Circuit Court motion from order same herein) coinplainant (Appellant to answer strike the Defendant, Paving Company (Appellee here- Consolidated in). facts in
A some of the involved the mort- restatement gage case, in connection with some of the facts foreclosure appears necessary in ease, to the instant here order They involved. are substance understand all issues as follows: woman, purchased Johnston, a cer- M. married
Mrs. Ella County suit) (subject-matter as. in Lake of this tain land grantee in her she separate property and as deed as- her price” “purchase part of agreed to sumed by outstanding H. first held 0. Wilson a certain subsequently, covering property; while wife joined by Johnston, her possession, and in Mrs. owner husband, gave Appellee, Paving Com- to Consolidated pany (then Co!x-Bryson Paving Company) a written through constructing paving prop- contract for the said erty, which con- there contained covenant which property stitutes said contract a lien mortgage deed;” “same force and as a effect second paving completed approved, after the John- conveyed joined husband, property ston her Percy Coupland T. from whom and wife she collected payment payment initial cash and later received full equity mortgage” her total foreclosure of “second given Coupland part her and wife as purchase price, Coupland said deed said and wife to’ covenanted the first and the Paving Company, lien of the Consolidated one of De- herein; Loblaw, Canada, T. pur- fendants P. was the chaser at foreclosure, the sale under second the. appears but part he to have taken no in either of the in- appears stant cases. It further that after Mrs. Johnston conveyed premises, had after she been made purchased dealer, covering free tax certificates most property of said which were converted into tax Complainant foreclosed; being and are here that Mrs. *4 personally furnished Johnston the funds with which the purchased, but certificates were the title to said tax-deeds corporation, Appellant in the name here, were taken of assignment had done when she as she .before took o'f mortgage; pending first that consideration of bill mortgage, complainant to foreclose the said first the same bill in the instant case to filed foreclose said tax deeds prayer in super- which there is likewise a for a of decree iority paving mortgage said tax deeds over the of of liens Paving Company Consolidated said executed Mr. her husband and Mrs. Johnston and while she was owner possession, prayer given also a that Defendants be a time within which to reasonable said tax lien or be bill the said To this tax foreclosure “forever foreclosed.”' by way up Company Paving its and set filed answer paving con- still due the said counter-claim the amount on avers paving lien which defendant tract secured said superior mortgage and tax a deeds had become merged in Mrs. John- being Complainant foreclosed organized as a ston, corporation avers that lien; argued is subterfuge and it said Defendant’s defeat equity in the Complainant no't in be considered could that prayer a party. The answer also contains of a third status company paving adjudged be su- that the lien defendant deeds, dignity complainant corpora- perior in to the tax money that the amounts tion, that the Court decree tax tax deeds by Complainant certificates, paid paid protection be decreed to be funds and costs complainant defendant, and that interests of both costs. with its reasonable defendant be dismissed presented only assignment instant error The review, com- whether or not trial court case for denying portion the motion to strike that mitted error setting up cross claim. answer of the Defendant’s Appellant assignment (1st) above contends: Under the up by paving the defendant the affirmative matters set interposed company such as are allowed be a are not deeds; (2nd) tax in foreclosure of the said counter-claim being superior liens foreclosed are said tax deeds defendant, (3rd) if the lien is to that of counter-claim, subject-matter of that Mr. proper necessary parties are defendant thereto and Mrs. Johnston question process. with also arises as to must served complainant rights who holds at the what are the and the said cover- time the tax first premises, both of which Johnston ing agreed through now grantee pay, her and is her deed *5 foreclosing separately corporation own said 116
paving company whose lien has the “same force and effect mortgage.” second question scarcely
As any to the first there could be doubt that the counter-claim answer contained defendant’s may properly interposed (3120) be under Section 4906 1927, C. G. provides L. which such counter-claim may interposed so be it when arises out the same trans- subject action which is the matter the suit or where it subject independent matter of constitutes the suit equity against Complainant touching property. the same- complaint
The bill of
in terms seeks to have defendant’s
mortgage
complainant’s
lien
declared inferior to
by
foreclosing
tax lien
forever
upon
failure or refusal
up
prior
defendant
in full
amount set
premises.
lien
response
answer is
to that
allegation,
why
show
undertakes
Defendant’s lien
adjudged
showing
should not
inferior
Johnston,
fact,
name,
who is in
not in
the Clermont-
Country Club, Inc.,
only paid
Minneola
which
the taxes
obligated
she had
covenant
herself to
when
bought
property and when
she executed defendant’s
mortgage
paving,
to secure
cost
doing
protected
her own
lien. The matter
up
only
set
subject-
in the answer not
arose out of the
original bill,
matter of the
but was connected
with
by complainant’s bill,
made an issue
and therefore con
proper subject
equitable
stituted a
matter
counter
al.,
claim.
vs.
Turner,
Utley,
al.,
910,
See
et
93 Fla.
112
837;
Lovett,
611,
v.
768;
So.
Lovett
Fla.
112 So.
Gentry-Futch
Gentry,
595,
Co. v.
473;
Fla.
106 So.
233,
Levitt v. Axelson 102 Fla.
553;
So.
v.
Tilton
Horton,
497,
103 Fla.
In reference the second contention of it will that in the be observed foreclosure we held assignment of the first to the Clermont
117 Country had Club, Inc., which Mrs. Johnston Minneola taking* to' the organized purpose of title apparently for the grantee agreed in her deed as mortgage said which she had “purchase price,” that part of the as to assume assign- such presented that there under the circumstances mortgage satisfying in so the effect ment had far causing concerned, mortgage paving was thus the lien superior to to become paving the defendant’s necessarily Complainant’s. a material has This ease. bearing upon Appellee’s instant status Mrs. mortgage foreclosure suit it admitted In the money purchase had furnished Johnston organizing corpora- mortgage, said first also admitted taking title to said (Appellant) purpose for the tion covering assignment tax also the first together facts, property. such with Under admitted allegations counter-claim and evidence contained thereof, support general results would be taken in mort- the title to the Mrs. Johnston taken same as equity, if Mrs. For, matter her own name. gage in mortgage in her title to said first could not take Johnston bring to foreclose same thereupon suit name, and own company, she could not do the lien ap- organized that she corporation by using the name of a L., 1214, 57; 26 R. C. See. purpose. See parently for that Quinn 514, 519; 74 73 Fla. So. v. Watts, v. Forrester 805, 416. The rule 113 would Phipps, Fla. So. being and deeds foreclosed apply tax certificates to the they purchased likewise case, as were instant being money the title taken with with her own Johnston corporation. name of 1927, Compiled pro- Laws, General- (3847) Section vides that: by other- “Any person has a lien or who may, al- for taxes within the time sold lands vase redemption, lands, redeem such law
lowed receipt to receive the officerauthorized amount *7 paid redemption money shall entitle the lien holder to of amount, collect the at with interest the rate ten per' per part centum in the same annum, a of and ’’ by original manner as the amotmt his lien. secured Complainant If had desired could have her included claim for taxes in her foreclosure suit. 8 Relf, In the v. 465, 184, case of Jackson Fla. So. it purchase mortgaged held that where there was a mortgagee paid estate at a tax the the sale amount so mortgagee “should be allowed the his foreclosure suit.” By assignee analogy, who stands in the mortgagee's shoes, purchases outstanding tax certificates protect mortgage, to her amount could be allowed assignee sale; in her foreclosure in fact under her former purchase grantee agreed she as the first which included taxes.
There question can no be that under Section 894 and 896, Compiled lawfully Laws, imposed 1927, Gen. taxes upon property real a lien superior creates thereon to all discharged. others remains in full effect and force and until provide duty Our statutes also it shall of chancery proceeds masters to’ from the all fore- county sales, taxes, state, closure municipal, all outstanding to redeem tax certificate property, paying after all costs of foreclosure. Sec. 954 1927; Chapter C. 1, 10285, G. L. Sec. Acts of 1925. authority In the Mortgages, excellent Jones on delinquent paid is “If rule stated that taxes are out proceeds Court, a foreclosure sale order assigned purchaser, the tax title is such assignment purchaser paramount does not create in the a title to that junior rights mortgagee a whose are not cut off Mortgages (Seventh sale.” 2 Jones on Ed.) foreclosure Sec. 680. Chap. 14572, 1929, amending
Under Sec. Laws of 1003 R. G. S. 779, Statutes, (Sec. 1920, Gen. Sec. Rev. 1927), suit is instituted deed foreclosure where tax final shall have the force “such decree decree entered mortgage on real es- foreclosing a and effect of a decree ” tate. having Therefore, Paving Company been made ordinarily party foreclosure, be shut would this its lien upon equity its contract lien concluded out and its under unless, certificates, pay or tax its failure to redeem such circumstances, paving mort- under all the facts may appellee properly gage of remain undisturbed equitable theory cer- purchase in the of the tax paid have taking thereon the taxes been tificates *8 complainant them;. by duty pay was so the whose it to to general rule is in a covenant that the absence legal duty upon mortgagee effect devolves a senior that no pay premises protection’ junior of a the taxes tfn to for mortgagee pays mortgagee; however, when a senior so protection property, entitled, he taxes is junior against mortgagor incumbrancer, to both and a paid al sum and it should be reimbursement decree, pro mortgage in out of the lowed foreclosure Relf, al., supra; Jackson v. sale. foreclosure ceeds of in court has also substance held This J., 640-641. 41 C. grantee cannot the lien of mortgagor defeat or Ms that pursuant a title thereto to a by acquiring tax mortgage n duty pay. v. their to Jordan it was which for taxes sale 823; 2 Mortgages (7th Jones on 110; 10 So. 29 Fla. Sayre, 680. Ed.) Sec. companion in ease that the having held
This Court mortgage Complainant caused the first same of the acts dignity that of the inferior to become assignment to mortgage, and also held in the case paving lien Appellee’s mortgagee 117, that a second Payne, 18 Fla. v. Gorton mortgagee, prior against we title as up tax set cannot by must analogy assume Johnston could not set up against Company tax Paving her defendant especially where it is shown that to bar she undertakes mortgage executed, defendant’s lien which she foreclosing upon tax deeds based ob- taxes she under ligations pay to executing at the Defendant’s time lien, paid protect mortgage “assigned” and later to the first (corporation). to her question paid
While there can be no that until valid all superior any liens may for taxes are to proper procedure paid out funds first derived yet foreclosure, from a sale under under the circumstances Complainant this case where it is shown only not holds the first which she had assumed agreed upon delinquent to a tax but deed based agreed taxes which pay, she likewise to both of which undertaking separate against foreclose suits as said second lien her, executed we are opinion tax, paid such superior while until would stand dignity yet upon being of defendant, paid to the lien duty her whose it was to them in instance, the first or paid protect mortgage assigned her, such tax thereupon superior ceased to property be a appellee’s mortgage. that of It is also' *9 general rule, as between mortgage, first and second that duty mortgagee it becomes of the each to the taxes person primarily when the fails, liable therefor and if pays reimbursement, either the taxes he is to entitled generally the hold presumption authorities of law purchasing party redeeming is that the or tax certificates protection so' for the of 3 does his own interest. See Cooley Ed.) (4th 1263, on Taxation Sec. Jones on Mortgages (7th Ed.) Sec. 714. of a (whether assignee
Where the holder as or mortgagee) proceedings, files foreclosure au- statutes part him to debt secured thorize include as of the expended property, for he does on the amount taxes procedure proper in not the authorizes the Court Statute provide payment of to in such the final decree taxes, after proceeds the foreclosure sale out may way paying all In the Court settle costs. this dispose Likewise, all in one suit. where liens such premises assignee who once owner of the o'f as mortgage including agreed subse- taxes, to quently outstanding prem- on purchases tax certificates land, lien ises, on said the said certificates cease to be a by the even when converted into tax deeds owner mortgage; permitted equity not and the owner would be equity mortgage or of a to foreclose said deeds property previously him contract held on the exe- same 'by property. Complainant while cuted owner acquired Complainant having a tax thus deed to property must, case, hold under the circumstances this im- subject appellee’s mortgage lien for to the complainant agreed writing provements which pay.
Finally Appellant that if the contends subject-matter counter-claim, proper claim a that Mr. necessary parties thereto JohnstoU become only jurisdiction could have been service of obtained process them. on ) 1927, if (3123 L., C. G. a Defendant
Under section may relief, require he for affirmative files counter-claim brought persons parties suit’’ “not then to the process parties and shall be entitled to to the cause persons Defendants to such bring in such counter other In instant case Defendant has not asked claim. the. per process Mr. and Mrs. Johnston be served case, de foreclosure sonally, but, Johnston, Mr. and Mrs. position taken the has fendant *10 eases, persons under the circumstances both are the real interest, court, corporation at are in is a and subterfuge organized attempt prevent and used in an merger of the title to the first and the tax deeds. position correct, was, This think is it not therefore, we necessary jurisdiction pro- order to obtain to have new cess to Mr. issued and Mrs. Johnston relation to the counter-claim. Finding reversible no the order trial court error
n overrulingthe denying demurrer motion to strike hereby the answer defendant be the same is affirmed. having Curiam. The record cause con this been Pee Court, opinion foregoing prepared sidered and the Chapter 14553, adopted by of 1929, under Acts the Court opinion, as its is considered, it ordered and decreed overruling Court that the of the court below order the de denying murrer and the motion to strike the answer hereby, be, defendant and the same is affirmed. C.J., Buford, . Wi-iitfield, Terrell, Brown Davis, J.J., concur. J., participating. not
Ellis,
Country Club,
Appellant,
Inc.,
Clermont-Minneola
vs.
Appellees.
al.,
Theodore P.
Loblaw,