69 Fla. 288 | Fla. | 1915
Lead Opinion
This appeal is from an order ovreruling a demurrer to a hill of complaint, and from an order denying a petition for a rehearing upon the demurrer. The bill of complaint in effect alleges that R. J. Knight executed mortgages on certain lands to secure an indebtedness; that subsequent to the execution of the mortgages, the mortgagor executed to the Crystal River Lumber Company a contract-to convey the timber on the land with, the-right to take the timber from the land during a long term of years; that the-mortgage liens were held by the Con
The rights of the appellant Crystal River Lumber Company in the lands were acquired subsequent to the mortgage liens, and as the appellant was not a party to the proceedings to enforce the liens, its rights were not affected thereby. Such contract holder had a right to pay off the mortgage debts and redeem the land itself. See Dundee Naval Stores Co. v. McDowell, 65 Fla. 15, 61 South. Rep. 108; Burns v. Hiatt, 149 Cal. 617, 87 Pac. Rep. 196, 117 Am. St. Rep. 157.
The purchaser of property at a foreclosure sale for the full amount due on the decree of foreclosure, when, for any reason the foreclosure proceedings are imperfect, irregular or void, becomes subrogated to all the rights of the mortgagee in and to such mortgage and the indebtedness that it secured, and becomes thereby virtually an equitable assignee of such mortgage and of the debt that it secured, with all the rights of the original mortgagee, and becomes entitled to an action de novo for the foreclosure of such mortgage against all parties holding junior encumbrances or the legal title, who had been omitted as parties to such original foreclosure proceedings under which he bought. Key West Wharf & Coal Co. v. Porter, 63 Fla. 448, 58 South. Rep. 599; Jordan v. Sayre, 29 Fla. 100, 10 South. Rep. 823.
Tn this case the purchaser at the foreclosure sale was the mortgagee, and it did not bid the full amount decreed
As there is equity alleged in the bill of complaint upon which appropriate orders and decrees may be made in adjudging the rights and equities of the parties in the premises, the demurrer was properly overruled. ’ Additional costs that may accrue because of the failure to make the appellant a party to the first foreclosure proceedings may be equitably adjusted; See 2 Jones on Mortg. sec. 1679, 1680; State Bank of Wisconsin v. Abbott, 20 Wis. 599.
The orders appealed from are affirmed.
Rehearing
ON REHEARING.
A petition for rehearing suggests that the court omitted to consider the circumstance that the complainants, appellees here, are not the purchasers at the foreclosure sale, but claim through a conveyance from the mortgagee purchaser. The opinion expressly refers to the appellees as being the successors in title to the mortgagee purchaser and to the rights of the legal or equitable assigns of such mortgagee.
As shown by the opinion, the hill alleges that the mort
Even if appellant was not a necessary party to the foreclosure proceedings, the right of appellees to re-foreclose is not thereby affected. Nor does this right of appellees prolong the life of the mortgage. If a foreclosure proceeding is not complete it can be made complete by appropriate proceedings in the absence of controlling equities forbidding it.
Rehearing denied.