65 Fla. 15 | Fla. | 1913
Statement, By
On the 1st day of April, 1912, the appellee filed his petition in chancery, which omitting the formal parts thereof and the exhibits referred to therein and made a part thereof, and attached thereto, is as follows:
“The petition of M. A. McDowell, of the County of Madison and State of Floxdda would respectfully show unto the Hon. Ira J. Carter, Judge of the Circuit Court, 3rd Judicial Circuit in and for Madison County, Florida, that on the 23x’d day of June, A. D. 1908, W. B. Jenkins and his wife Emma E. Jenkins, of the County of Madisoxx and State of Florida, made, executed, acknowledged and delivered to one C. L. Leggett their certain note for $500.00 secured by xxxortgage on the following described property, to-wit: the northeast quarter and the southeast quarter of the northwest quarter and the northwest quarter of the southeast quarter of Section Two; the north
Your petitioner would further show that on the 11th day of November, A. D. 1911, the said C. L. Leggett, filed in the office of the Clerk of the Circuit Court in and for Madison County, Florida, his bill of complaint against the said W. B. Jenkins and his wife Emma E. Jenkins for the foreclosure of said two mortgages, that on the 19th day of January, A. D. 1912, the said court made and entered its final decree in said cause, adjudging that said mortgages be foreclosed, and ordering B. H. Rowe, as Special Master to make sale of the property as set out in said mortgages and Said decree, as' directed by the court; that on the 12th day of March, A. D. 1912, the said R. H. Rowe as Special Master, pursuant to the terms of said decree, filed his report in said court, wherein he reported the sale of said property pursuant to the terms of said decree to your petitioner for the sum of f1,578.00; that on the said 12th day of March, A. D. 1912, the said court made and entered its decree wherein said report of said Special Master was “in all respects confirmed and approved,” all of which proceedings will more fully appear in the files of said cause, reference thereto being prayed.
Your petitioner would further show that on the 13th day of March, A. D. 1912, pursuant to the terms of said decrees, the said Special Master, made, executed and delivered to your petitioner his deed conveying said lands embraced in said mortgages to your petitioner, as will more fully appear from a certified copy of said deed which is hereto attached marked ‘Exhibit D,’ and made a part of this petition.
Your petitioner Avould further show that subsequent to the institution of said suit for the foreclosure of said
Your petitioner would therefore pray, that your Honor make an order directing the same Dundee Naval Stores Company, to deliver to your petitioner the possession of such lands embraced in the deed from fe. H. Rowe, Special Master, to your petitioner, the timber upon which they are now working for turpentine purposes, and your petitioner will ever pray, &c.”
The petition was duly sworn to by the appellee and upon the presentation of the same to the Circuit Judge, on the day that the petition was filed, he made an order, directing the appellant to show cause on the 8th day of April, 1912, why the prayer of such petition should not be granted. On such date the appellant interposed a demurrer, wherein he questioned the equities of the petition, which -was overruled, and at the same time the. appellant filed the following answer:
“The answer of defendant Dundee Naval Stores Company to the petition of M. A. McDowell exhibited against it. This defendant now and at all times hereafter, saving and reserving to itself all, and all manner of benefit or advantage of exception or otherwise, that -can or may be had or taken to the many errors, uncertainties and imperfections of the said petition contained, for answer thereto, or to so much thereof, as this defendant is advised is material or necessary for it to make answer to, answering saith:
1st. That it admits the making and delivery by W. B. Jenkins and wife Emma E. Jenkins of the two mortgages
2nd. This defendant admits that the said W. B. Jenkins made and executed the turpentine lease as set forth and described in said petition to-Boyd & Gibbons, and admits that Exhibit ‘A’ to said petition is a true and-correct copy of said lease or conveyance; and defendant admits the transfer or assignment of said lease by said Boyd & Gibbons to this defendant as set forth and alleged in said petition, and admits that Exhibit ‘O’ attached to said petition is a true and correct copy of the said assignment or transfer of said lease, and admit that it is at this time the legal owner and holder of said lease or conveyance and have been since the 10th day of August, A. D. 1911.
3rd. This defendant admits that on the 11th day of November, A. D. 1911, the said C. L. Leggett filed in the Circuit Court of said County of Madison his bill against the said W. B. Jenkins and Emma E. Jenkins, his wife, in which was sought a foreclosure of the two mortgages mentioned and described in said petition, and defendant further admits the making and entering by said court of the final decree in said cause as set out and mentioned in said petition, and also the confirmation or approval by said court of the Special Master’s report of sale. But defendant avers that the said final decree so made and rendered by said court or the judge thereof, was not, and has not, since the making or entering of said decree been recorded as required by law on the Minute Book of the Circuit Court of said County of Madison;
4th. Defendant admits that on the 29th day of November, A. D. 1911, the said C. L. Leggett by and through his solicitors of record filed in the said foreclosure suit, his notice of Lis Pendens, and which was by the Clerk of said Court recorded as set forth and alleged in said petition.
5th. Further • answering defendant says that long-prior to the time when the said C. L. Leggett filed his bill for foreclosure of the two aforesaid mortgages so executed to him by the said W. B. Jenkins and wife as set forth and alleged in said petition, the said firm of Boyd & Gibbons were in possession, as they had a right to be, of a large portion of the lands which are described in the lease or conveyance marked Exhibit ‘A’ attached to said petition; and by and through their agents, servants and laborers were working and using- the pine timber or trees growing thereon for turpentine and naval stores purposes, and removing the crude products thereof, and so continued to occupy, use and hold said land and work and use said timber or trees thereon for turpentine purposes up to the time of the making or executing to defendant of the conveyance of which Exhibit ‘C’ attached to the petition is a true copy; and this defendant ever since the execution and delivery to it of the conveyance of which Exhibit ‘O’ to the petition is a true copy, has continued to occupy a portion of said lands and work and use a portion of the timber or trees growing thereon for turpentine purposes and which has been so worked and used as aforesaid for turpentine purposes by their predecessors in title the said firm of Boyd & Gibbons, and which was being so worked by said Boyd
6th. Further answering defendant says that in the early part of the month of December of the year A. D. 1911, and on divers other dates since that time, it did by and through its servants, laborers and employees, enter upon other portions of said lands and cup, and work for turpentine purposes certain other portions of said timber or trees which had not theretofore been worked or used for turpentine purposes by their predecessors in title the said Boyd & Gibbons, and at this time are so continuing to work and use the same for turpentine purposes, as it has the right to do by virtue of the conveyance of which Exhibit ‘A’ to the petition is a true copy.
7th. Further answering said petition defendant says that long prior to the 11th day of November, A. D. 1911, the said C. L. Leggett and the petitioner, M. A. McDowell, had notice and knowledge, both actual and constructive, of the execution of the conveyance marked Exhibit ‘A,’ and also knew of the possession and use of a part of said lands and timber as set forth in paragraph 5th hereof, and knew at the time of the pretended sale of said lands by the said Special Master as set forth in said petition that defendants were in possession of a part of said lands and working and using the timber or trees thereon as aforesaid for turpentine purposes, and that defendant was claiming adversely the right to work and use for turpentine purposes the timber or trees on all of the lands as mentioned and described in the conveyance of which Exhibit ‘A’ to the petition is a true copy.
8th. Further answering defendant avers that prior and subsequent to the execution and delivery by the said W. B. Jenkins of the conveyance of which Exhibit ‘A’ is a true copy, the said O. L. Leggett, who was and who at
9th. Further answering, defendant says that both it and the firm of Boyd & Gibbons are necessary parties to the foreclosure proceedings mentioned and recited in the petition, and by reason of the omission to make them parties to said foreclosure suit their rights or interest in the subject matter of said suit are not and were not affected by the decree or any proceedings had therein; and defendant claims the same benefit hereof as if it had interposed the same by demurrer.
Further answering, defendant says that the final decree of foreclosure mentioned in the petition was not prior to the filing of the petition recorded in Minutes of Circuit Court of Madison County, Florida.
And this defendant denies all and all manner of unlawful combination and confederacy wherewith it is charged by the said petition*; without this that there is any other matter, cause or thing in the said petition contained, ma
On the 9th day of April, 1912, the Circuit Judge rendered the following decree:
“The court having heretofore, to-wit: On the 1st day of April, A. D. 1912, made an order that the Dundee Naval Stores Company, a corporation, show cause to this court, at Madison, Florida, on the 8th day of April, A. D. 1912, why it should not make an order directing the said Dundee Naval Stores Company, to deliver to M. A. McDowell the possession of such of the hereinafter described lands, the timber upon which the said Dundee Naval Stores Company, are working for turpentine purposes, and said cause now coming on to be further heard upon the petition of M. A. McDowell, the answer of the Dundee Naval Stores Company and the affidavits filed herein in support of the allegations of the petition, and in denial of certain allegations of said answer, it is, upon consideration thereof, after first hearing argument of counsel for the said M. A. McDowell and said Dundee Naval Stores Company, ordered, adjudged and decreed that the said M. A. McDowell, be let into possession of so much and such parts of the following described lands, the timber nupon which the Dundee Naval Stores company is now working for turpentine purposes, to-wit: The northeast quarter and the northwest quarter of the southeast quarter, and the southeast quarter of the northwest quar*27 ter of Section two. The east half of the east half, and the southwest quarter of the southeast quarter, the south half of the southwest quarter, and the northwest quarter of the southwest quarter of Section twelve. The north half of the northeast quarter, and the southwest quarter of the northeast quarter, the northeast quarter of the northwest quarter, the northwest quarter of the southwest quarter and the southeast quarter of the southwest quarter of Section 14. The southeast quarter of the northwest quarter of Section ten. All in Township one, north, six east. The same being in the County of Madison, State of Florida, and that the said Dundee Naval Stores Company, a corporation, be and is hereby directed to surrender possession thereof, and deliver the same to M. A. McDowell.
Done, ordered, adjudged and decreed in Chambers at Madison, Fla., this 9th day of April, A. D. 1912.”
From this decree the Dundee Naval Stores Company has entered its appeal.
On June 23rd, 1908, W. B. Jenkins and wife executed to C. L. Leggett, a mortgage upon certain real estate to secure a note for $500.00. On March 17, 1909, Jenkins and wife executed to Leggett another mortgage for $200.00. These mortgages were duly recorded. Subsequently, on September 24, 1910, the mortgagor Jenkins duly executed to Boyd and Gibbons and their assigns a lease to a portion of the lands for four years for turpentine purposes, and the lease was duly recorded. The lease was assigned to the appellant Au
The court overruled the demurrer to the petition for a writ of assistance, and on the pleadings and affidavits awarded possession to McDowell, the purchaser at the foreclosure sale, and the Dundee Naval Stores Company, the assignee of the turpentine lease, appealed. The main question presented is whether the Dundee Naval Stores Company, the assignee of the lease, is deprived of its leasehold rights by the foreclosure proceedings to which the lessees and their assignee were not parties.
The rights of persons who have an interest in the subject-matter of the litigation, whether legal or equitable, cannot be adjudicated or affected by a decree rendered in a suit to which they were not made parties. See Robinson v. Howe, 35 Fla. 73, 17 South. Rep. 368; Wiltsie on Mortgage Foreclosure, Secs. 116 and 157; 2 Jones on Mortgages, Sec. 1413; 27 Cyc. 1386.
In the case of McNair & Wade Land Co. v. Parker, decided at the last term, this court said with reference to the rights of the lessee of timber and turpentine privileges on land: “As to the interest conveyed by the deed it is plain that it carriers no permanent fee simple interest in the land itself. It conveys only the timber growing on the land, which is a kind of servitude which may be lost by non-use or abandonment.” That an interest in the land was acquired by the lessees was expressly recognized and it was held that such interest may
After the execution of the mortgages the mortgagor for a receipted consideration of $700.00 leased by a duly executed conveyance to the lessees and their assigns, “all of the timber upon the............described, tract of land for the purpose of boxing, working and otherwise using said timber for turpentine purposes.” “To have and to hold, box, work and otherwise use said timber for turpentine purposes unto the said parties of the second part, their heirs and assigns, and it is hereby expressly covenanted and agreed that the said parties of the second part may commence boxing, working or otherwise using the said timber for turpentine purposes, or any portion thereof, at any time that the said parties of the second part may desire, and shall have the right to continue to box, work or otherwise use the said timber, and every portion thereof, for the full term of four years, beginning, with reference to such portion of the timber, from the time only that the boxing and working of each portion is commenced.” This instrument was duly recorded and certainly conveyed to the lessees and their' assigns for a valuable consideration a substantial property right and an interest in a particular portion of the lands that had previously been mortgaged. See Secs. 2448, 2480 Gen. Stats, of 1906; Dowling Park Naval Stores Co. v. Houck, decided last term. The lease has not been surrendered or abandoned, and the purpose of
The mortgages being under the statute mere liens upon the lands, the mortgagor still owning the title and being-in actual or constructive possession, had a right to lease the lands for turpentine purposes subject to the mortgage liens. As the purchaser’s title to the land was acquired only by a foreclosure of the mortgage liens and a sale of the lands thereunder, and as the liens of the mortgages could not affect the turpentine lease except by virtue of the foreclosure proceedings, the lease-holder cannot be deprived of his- rights without being given an opportunity to be heard by being made a party to the foreclosure proceedings or otherwise as may be provided by law. The foreclosure sale gave the purchaser a title to the lands, but this does not per se destroy the leasehold interest. The leaseholder had a right to possession for the lease purposes as against the mortgagee before the foreclosure, and such right has not been terminated or cut off by adjudication or otherwise. While the lease-holder corporation may be required to observe the rights of the purchaser acquired at the foreclosure sale, yet if such lease-holder is not estopped or has not forfeited or abandoned its property right in the lease, it cannot legally be deprived of such right except by due process of law. Where different persons have rights or interests in specie land, the foreclosure of a mortgage upon the land affects the rights and interests of only such persons as are made parties actually or constructively to the foreclosure proceeding. An owner of the title may be cut off by foreclosure against him, but one having a duty recorded lease upon the land but not made
The failure to make the lessees or their assignee parties to the foreclosure proceedings may not affect the validity of the decree; and though the purchaser gets a title by virtue of the mortgages, the foreclosure and the sale, which title includes a right of ultimate possession, yet, as the rights of the lease holder have not been adjudicated, the title and right of possession acquired by the purchaser at the same, are subject to the rights of the lease-holder under the duly executed and recorded lease until such rights are in some way duly terminated. The lease-holder is a party to the proceedings on application for a writ of assistance, but it does not appear that the rights under the lease have been terminated or that the lease-holder is not claiming in good faith in its own right acquired by the recorded lease before foreclosure began. See Tiffany on Landlord & Tenant, p. 419. The lease in tfiis case had not been surrendered as in McDermott v. Burke, 16 Cal. 580; nor is it a concealed unrecorded lease as in Strong v. Smith, 68 N. J. Eq. 686, 60 Atl. Rep. 66; 63 Atl. Rep. 493, where the doctrine of estoppel was applicable.
In Batterman v. Albright, 122 N. Y. 484, 25 N. E. Rep. 856, the purchaser of a stock of nursery trees, vines and shrubs at an execution sale had no interest in the lands on which the nursery was growing, and consequently he was not entitled to be made a party to the foreclosure of a mortgage on the land.
As a sale and conveyance under the foreclosure have been made and as the lease-holder is merely defending its rights as against the writ of assistance, it‘does not appear to be necessary or appropriate that an offer to redeem or to pay the mortgage debt be made.
The purchaser had constructive notice of the executed and recorded lease before foreclosure proceedings were begun, and had actual notice of the possession and adverse claim of the appellant at the date of the sale.
The decree of foreclosure by its terms or by its legal effect does not deprive the appellant of its lease-hold rights, as it was not a party to the foreclosure proceedings.
The order directing the lease-holder to surrender possssion to the purchaser at the foreclosure sale before the lease-hold interest is adjudicated or terminated is reversed.
The first two assignments are not argument, therefore, under our settled practice, must be treated as abandoned. The third assignment is based upon the overruling of the demurrer to the petition. This demurrer was addressed
This brings me to the consideration of the fourth and last assignment, which is based upon the final decree and is the assignment upon which the appellant chiefly relies for a reversal. It has been ably, earnestly and
“Further answering said petition defendant says that long prior to the 11th day of November, A. D. 1911, the said C. L. Leggett and the petitioner, M. A. McDowell, had notice and knowledge both actual and constructive of the execution of the conveyance marked Exhibit ‘A,’ and also knew of the possession and use of a part of said lands and timber as set forth in paragraph 5th hereof, and knew at the time of the pretended sale of said lands by the said Special Master as set forth in said petition that defendants were in possession of a part of said lands and working and using the timber or trees thereon as aforesaid for turpentine purposes, and that defendant was claiming adversely the right to work and use for turpentine purposes the timber or trees on all of the lands as mentioned and described in the conveyance of which Exhibit ‘A’ to the peiition is a true copy.”
At the hearing, the petitioner produced and filed in support of the allegations in his petition and in denial of certain averments in the answer the affidavits of himself, C. L. Leggett, J. M. Clements, W. B. Jenkins and V. C. McCoy, while the appellant produced no affidavits or other proofs in support of the averments in its answer. The affidavit of- the petitioner is as follows:
“Personally appeared before me M. A. McDowel, who being by me first duly sworn deposes and says, that it*40 is not true as alleged in paragraph 7 of the answer to the petition in the above entitled cause, that he knew of the possession and use of the lands and timber by Boyd & Gibbons as set out in paragraph 5 of said answer, but avers on information and belief that the said Boyd & Gibons never at any time worked anj? of the timber referred to in the petition for turpentine purposes, that on or about the 1st day of March, A. D. 1912, he was informed by E. H. Smith, the general manager of the Dundee Naval Stores Company, that the said company through its agents, servants and employees, never went upon said lands and boxed or cupped the timber thereon until after the first day of December, A. D. 1911. Sworn to and subscribed before me this 8th day of April, 1912. W. A. McDowell.
Ira J. Carter, Judge.”
I also copy the affidavit of C. L. Leggett.
“Personally appeared before me C. L. Leggett, who being by me first duly sworn deposes and says, that he has heard read the answer of the Dundee Naval Stores Company to the petition filed in the above entitled cause, and that it is not true that he consented to the making of ‘conveyance’ referred to in the 8th paragraph of said answer, a copy of which is filed as Exhibit ‘A’ to the petition and agreed to and with the said Boyd & Gibbons that he would waive his rights and permit the working and using the timber or trees on the lands therein described for turpentine purposes or that he ever assured the- said Boyd & Gibbons that in the event of a foreclosure of his said two mortgages that he would consent and agree that the rights and privileges under said alleged lease should be excluded and released from the lien and operation of said two mortgages; that affiant always insisted to the said Boyd & Gibbons, when he heard that*41 they were contemplating a lease on said timber from the said Jenkins that he had a mortgage on the same, and that, in effect, they had better be advised of their rights, and that if they had begun to box the same and work said timber for turpentine purposes, to his knowledge, he would have taken steps to have protected his interest. Affiant further says that this affidavit is made for the purpose of being used in the above cause.”
J. M. Clements, W. B. Jenkins and V. C. McCoy each states in his affidavit that “he knows it to be a fact that the Dundee Naval Stores Co. entered upon and began boxing or cupping for turpentine purposes the timber on a certain tract of land lying west of Greenville in Madison County, Florida, known as the Jenkins land, sometime between the fifth and the fifteenth of December, 1911. Also that said lands are the same as those recently purchased by M. A. McDowell at public sale in Madison under a foreclosure of mortgage by C. L. Leggett against W. B. Jenkins.”
It is not contended that Boyd & Gibbons, the original lessees, were ever in possession of any of the lands after the 24th day of September, 1910, the date on which they transferred and assigned their lease to the appellant, even if it be conceded that prior to such date they had been in such possession and had worked the timber for turpentine purposes, though that matter' is contested. It would seem to be established that the appellant entered upon the land and began boxing the timber thereon for turpentine purposes after the first day of December, 1911, probably between the 5th and the 15th days of such month. As we have seen, it is admitted that Leggett filed his bill for foreclosure of the two mortgages on the 11th day of November, 1911, and filed and had recorded his notice of lis pendens on the 29th day of Novem
It is further contended by the appellant that it cannot be held to be bound or concluded by the decree’ rendered in the foreclosure suit because such decree contained the following language: “And it is further ordered that the defendants and all persons claiming by, through or under them since the commencement of this suit, be forever barred and foreclosed from all equity of redemption and claim of, in and to said mortgaged property or any part thereof.” To this contention I cannot agree, though the language used in the decree might well have been broader and more comprehensive.
It has not been shown, nor do I think that it could be, that the appellant has or had the right to redeem, since, strictly speaking and using the work redeem in its technical sense, the right to redeem does not exist in this State. As I understand them, the authorities which
