*1 537 positive member, is a a of which he tion or board non- merely ensuing duty, because the discretionary legal or omitted under an act damage was caused done illegal personally. act or office, and not The color o'f of which the public corporation a or board omission of mem- member, was a becomes the act of those officersued consummation, and actually participate bers who its illegal in the act participating so such officer members personally for the neglect held liable may be and sued by per- resulting damage may been sustained have duty. specially injured by son Tritchelor the default Bergeson, supra. vs. first count as to the be affirmed judgment should
The declaration, second count of reversed and as demurrer to overrule defendants’ with directions may proceedings as further have such count second according to law. Reversed first count. judgment on as to Affirmed with direc- count. Remanded judgment on second proceedings. further tions Davis, J.J., concur.
Whitfield, P.J., and Terrell Buford, C.J., judgment. opinion and in the concurs 21 A. Filed under Rule Ap Columbia, corporation, Land Bank Federal
pellant, v. Bertha Jones, and Willie Godwin, Lorena Dewey Hunter, Hunter husband, Ruth Jones, her Godwin, minor, Elsie Godwin, Ada husband, Mrs. her Association, T. G. Loan Farm National Appellees. Alderman, 513.
L. W. purpose for the case is here Commissioner : This Davis, sustaining a demurrer having of an order review *3 mortgage. a hill for the of a foreclosure things alleges complaint among in The bill of other day July, of 1926, the 13th and effect that on substance mortgage upon executed W. B. Godwin and wife cer Taylor County in to the First National Bank tain lands $1200.00; on Perry, of the of that the 6th to secure sum said, day pur and wife September, of the Godwin from T. G. chased a tract of land and borrowed Alder pay for said land and man the sum of to for $1100.00 making improvements gave thereon to Alderman a covered, exception which with the of one bank; “forty” the land in the embraced December, day on the 30th the said Godwin that upon bank and wife executed a to the said the in payment to $1631.00 same lands secure renewal, alleged, Septem as it is of the dated August, 1928, 6, 1926; that on the 28th of the said ber Federal complainant, wife executed Godwin and Columbia, mortgage to Bank of their secure Land to be on payment of and interest thereon $1600.00 installments, in annual plan an amortization maturity accelerating the of de provision therein for by the mort being payments upon made ferred default any prin- making installment gagors payment cipal interest; prior securing or the loan from complainant, complainant Godwin delivered to said application written of himself and for a wife loan following purposes: ‘‘Two repair houses; dollars to hundred hundred two dollars buy fencing; wire thousand, one five hun pay dred dollars to mortgage to the First National Bank; one hundred dollars to for stock Na
tional Farm Association.;” Loan that the mortgage to the said Bank “was all the incumbrances, mortgages, all the all liens against the security land offered also all ac purchase or money,
counts amounts due on account covering purchase or land; *4 complaint.” bill orator’s though That to the said Alderman was recorded, it was not shown on an abstract that was “made and executed the complainant; that the said by sum $1600.00 was complainant not delivered Godwin, but was turned over agent to the of com- plainant pay him said bank so much of it as was due the by.the Godwin; said bank said that sum of paid $1600.00 was bank, to the said being ap- it proximately sufficient to all that due .said bank by Godwin, purpose the said “for the obtaining
541 securing” bank from said that was then by complainant’s held it in order for mortgage to be land; come a lien on the that the said Godwin had payments defaulted in complainant his and that ex had option ercised its to declare the entire amount due and payable; mortgages that the to said First National Bank of Perry have record; not been cancelled of that the mort gage to Alderman complainant has been is advised believes, but if it paid, that not been the com has plainant subrogated has been rights to the of said bank security Complainant held it. prays for the fore closure of its said or in the event the Court finds necessary complainant that the rights of the said First National Bank Perry, the mortgage July 13th, 1926, to the First National Bank Perry be foreclosed. To the of complaint bill part attached as a copy thereof a application made the said complainant Godwin to the for a loan of $2000.00 agrees wherein he to take a smaller amount complainant as the may its discretion determine. In application he lists the to the First Na tional Bank at $1500.00. The der defendant murred whole bill.
It is an general established rule here that a demurrer addressed to the entire bill should be if there is overruled any equity in allegations (Craft Craft, of the bill v. 262, 772; 74 Fla. Downing Carlton, 490, 76 So. v. 76 Fla. 57; 80 Indemnity So. Leavine vs. Belt Automobile As sociation, 553, 88 102 768; Victory Fla. So. also v. Stokes Land Co., 99 795, 408, cited), Fla. 128 So. and cases there operates that such demurrer as an admission of all allegations pleaded. the bill which are well Reid Barry, v. 946; Gunn, Fla. 112 So. Amos v. 84 Fla. Halcyon 615; Corp. Hotel Miami Real Es v. Co., 403; City Miami, tate 89 Fla. 103 So. v. Rawls
542 Abbott, 402, Fla. 74 351; Phifer v. 73 65, 89 So.
82 Fla. Co., 902, 48 56 Fla. 488; Holt v. DeLoach-Edwards So. 1039. requirements is' sufficient as a
The bill in all essential the held foreclosure of for the basis coming in of an answer and complainant. If on the has testimony appear that Alderman taking of should superior lien property lien an unsatisfied on complainant that it should complainant, the contention of the First rights and remedies be in the taken care of can be National Bank of final decree. sustaining equity order being
The bill not without hereby reversed. thereto is the demurrer remanded to the this cause will have Inasmuch as principal proceedings, for further lower court parties involves point of between contention Bank, Federal Land right complainant, July 13, 1926, subrogee, to foreclose appropriate us Perry, it is National Bank the First at this time. controversy to settle that 452, R. L. the fol quote approval from 19 C. We lowing : change unquestionable law that a mere “It equal dignity for a is not a nova- debt securities per payment or release thereof that debt or a tion of se. Hence a same deed of trust on the second discharge the lien of alone property does not uniformly contrary, On the the authorities
the first. hold taking of the second that whether extinguishment of the first amounts to an parties. one between the Crisman vs. is Lanterman, of intention 89, Rep. 647, 87 Pac. 117 Am. St. Cal. Albany Bank, Third Nat. 133 Ga. 167; Farkas v. (N. S.) 496; A. Rossbach v. 66 S. E. 26 L. R. (N. S.) 526,W. 42 L. R. A. Micks, 132 N. Neb. Hotaling 205, 40 Pac. 444; Co., A. P. 27 Ore. Kern v. *6 543 367, Bailey, 64 Vt. Rep. 710; Austin v. 168, 50 Am. St. Plum, Rep. 932; Atkinson v. 245, 24 Atl. 50 W. 33 Am. St. A. See also 104, 587, Va. 40 58 L. R. 788. S. E. A. 470; 537; R. A. 35 L. R. Notes; 85 Am. Dec. 10 L. (N. Bank, S.) 86. National See also Cheves v. First 34, 79 Fla. 83 870.” pre
A new of an old one takes renewal over an cedence the old debt to the extent of intervening upon the mort property lien covered gage. 629, N. W. A. Young Shaner, 555, v. 73 Ia. 35 5 S. R. 701 and note. effect that here appellant
The takes Bank of out National the First when by Godwin, the amount from it borrowed the funds Godwin, agreement with of an pursuance it in claimed upon prop- have a first lien appellant was to loaned, the of the sum erty payment as- Alderman, as the against treated entitled, as First National Bank mortgage to the signee of the agree- necessary being do so to effectuate the Perry, it prevent the appellant, and to with the ment of Godwin being from raised acci- Alderman junior mortgage of contrary the in- lien, dignity a first dentally parties. tention supports authority, such con perhaps, weight Ky. Marvin, 228 Bank v. Land
tention.
Federal
See
1392,
splendid
L. R.
(2d) 762, 70 A.
242, 14 W.
S.
Bank, 139 S. C.
Land
Enterprise Bank v. Federal
note;
v.
Bldg. etc. Ass’n
146;
E.
Cumberland
397, 138 S.
Bierstadt, 168
Bank v.
Sav.
647;
Fed.
Home
Sparks, 111
146;
Rep.
Tradesmen’s
Am. St.
161,
48 N. E.
61
618,
Ill.
133;
Eq.
Wilton
Appellees rely confidently upon the decision Court in Boley Daniel, v. 72 Fla. 72 So. L. R. A. 1917A 734, to appealed sustain the order from. In that *7 ease, the right subrogation to was denied to (Daniel) one who money advanced to a mortgagor, by name, Brooks to dischage prior a mortgage against as a recorded sec- ond mortgage. In its treatment of this ease the Court said: “As Lee Daniel obligation was under no whatever pay by to the note that was secured the mortgage first property given by on the Brooks, Waters to and had
no interest in relation property, the to there can legal subrogation be no of Daniel to the rights of the mortgage. holder of the first note and If there can be subrogation, must be conventional subrogation agreement parties and based on an the mortgage first Daniel. An lien shall continue for the benefit of agreement Daniel, between the ‘and mort- gagors that he was to have a lien first on prop- the by erty agreement mortgage,’ covered necessarily said is not an mortgage that the first lien shall remain force for the benefit of Daniel. It is true money the by loaned Daniel was obtained and used ‘for pur- pose paying up mortgage’ which superior Boley’s mortgage; to but Daniel ‘had as no actual knowledge’ notice or Boley of the second or mortgage, he could not have contracted for a continuance of the first mortgage. having lien as reference Boley’s agreement between Boley ‘and the mortgagors that he was to have a first lien on the property by mortgage,’ covered said was consistent with Daniel’s ‘belief that there were no other liens on property,’ and consistent with action, Daniel’s under such belief when he ‘caused to be satisfied on record the first mortgage.’ If Daniel had known of Boley mortgage the cancellation of the record of the tained first probably would most have con- against some reference to a reservation as Boley mortgage. agreement Besides this the ‘a first lien property on the by’ mortgage, covered property ‘relates to all the some which,’ though part, a small was not the first mort- gage. Daniel had constructive notice the record Boley’s binding which is on Daniel. “The fact subsequent that a mortgagee’s lien will occupy the same relation property, if one who has money, advanced secured on the real estate, off prior mortgage, is subro gated rights of the holder of such first mort gage, affords why equity no reason permit should party advancing money so to be rights mortgage. of the holder of first existing against “When a first lien real paid off, mortgage law, estate is on the lien of a second there- once, by operation at a first lien becomes property; lien, on the and this right and the rights.” enforce it are as such vested epitomized The conclusion of the Court is as follows: *8 “Being duty, legal otherwise, under no or mortgage debt, the first Daniel is not entitled to a legal subrogation prior right that had existed in favor of first holder. hav- And not ing agreement shown an that the lien the first mort- gage benefit, ap- should be alive for kept his but it ‘ pearing merely agreement that the was for a first lien property by’ on the mortgage, covered the last which property included other that covered by besides and that Daniel ‘in the belief that there property were no other liens on the caused to be sat- on first mortgage,’ isfied record the there is no clear showing right of a to a subrogation.” conventional by But it is contended that the Court in Forman & Co. v. Quincy, First National Bank of 76 Fla. 742, has, in effect, departed from the rule Boley laid in Daniel, supra. down v. While it is in said Quincy Forman v. First National Bank of that “The modern agree subroga authorities that the doctrine of tion has been steadily expanding growing import- and in subjects application
ance in and extent various and its agreement persons classes and out of which that the subrogation upon conventional and which rests arises ’’ may may be be express implied, and while much in favor in that under the facts' contention implied case agreement there was an that the kept alive, National First Bank should Boley-Daniel the fact remains that in the the decision by in the decision or modified not overruled Case was Quincy, supra, and Bank First National v. Forman in force in former case is still rule stated this State. remanded for the cause is reversed and order with law. proceedings
further accordance having been in this' con- Per cause Curiam . The record opinion prepared Court, foregoing by and the sidered 1929, adopted Court Chapter under Acts considered, is opinion, it ordered decreed as its be, the order of the Court below should the Court that is hereby reversed the cause re- and the same proceedings law. manded for further accordance Davis, J.J., Buford, C.J., Brown and Whitfield, concur. J.J., Terrell, participating.
Ellis not Rehearing. for Petition On Pepper Devis, B. Waller E. Finch, W. & and James Appellant; Blanton, Appellee. W.
L. *9 August opinion 7, in filed cause J . The this Terrell, quotes complaint alleging the bill as of that on July 1926, W. B. and wife executed mort- Godwin Perry gage of First National Bank secure the September 6, 1926, the sum of and that on same $1200.00 mortgage mortgagors to F. G. Alderman to executed a $1100.00, secure the of mortgage sum the latter describ- ing except forty the same lands as the one former acres. alleges 30, 1927, The bill also that on December Godwin mortgage and wife executed to the Na- second First Perry tional Bank of secure the renewal or extension mortgage July 13, 1926, of the note and said renewal mortgage covering the same lands as in the described mortgage being first in the amount of The $1631.00. bill further alleges August 28, that on 1928, Godwin and wife executed Bank of Federal Land Columbia their mortgage in the sum of to be on the $1600.00 plan thirty-five amortization installments, annual provision maturity for acceleration of the event failure payments promptly. to meet deferred brought
This suit complainant be- as mortgage August 28, low to foreclose 1928. The prays bill that the First Bank National Perry July 13, 1926, dated be foreclosed and com- plainant, necessary, rights if of said petition rehearing, question, bank. On the main presented is or whether not under the facts as stated right subrogation place of the First National Bank Perry complainant against exists favor of as Alderman, intervening mortgage. the holder of the having Sep- to Alderman been executed 6, 1926, tember and the to the First National Perry having Bank of July 13, 1926, been first executed 30, 1927, and renewed the Alderman mort- December did renewal, gage, as of such mort- the result become a first gage First did National Bank mortgage? still retain its determining
The rule whether a renewal or substitution priority intervening mortgages retains over Thompson judgments Property, is stated in 5 on Real 4263, page Sec. to be as follows: *10 mortgage between the same “Whether second given upon parties lands the re- upon the same and merely first is as a lease of the taken or cancellation payment satisfaction of the first or and renewal mortgage depends largely upon the intention the parties simply of the parties. the intention Where is debt, and extension of the old to make a renewal and taking mortgage the the of the old satisfaction parts or new simultaneous acts practically one are taking of the second transaction, the same extinguishment of mortgage first, an is not considered thereof, give pri- a renewal and does not but ority intervening mortgage or judgment creditors or mortgagor, especially where renewal sub- faith, notice of the good without stitution is made any intervening lien and to release without intention apply original rule, however, the where lien. does' not The is of an intention to waive the there evidence payment prior mortgage, lien of or to effect a applicable is thereof, neither the rule where new person given to from whom the a different money debtor gage, debt from the the old borrowed off mort- where the a distinct nor new secures debt, the old, or an additional satisfac- tion operating complete discharge in such cases as a mortgage.” of the note of record discloses that 30, 1927, given December was renewal extension July 13, the mortgage and was so note in- parties mortgages tended thereto. Both were be- parties, lands, tween the same were for covered same except the same amounts as to accrued interest cost which giving were the new and the included of the attempted discharge and the new or satisfaction parts of the old were same transaction. Under renewal such circumstances the De- 30, 1927, cember well within rule as above an- priority nounced and retained its over the mortgage. Alderman
Since the of mortgage renewal retains its priority over mortgage the Alderman suit was and this brought to August 28, 1928, foreclose the of should appellant rights be to the First National against Alderman, Bank of as intervening mortgage? or holder of the second subrogation not arise statute The doctrine of from does equity, ground of custom, peculiarly but is a creation or doing proposition justice parties on the of with ed regard It maxim to form. rests on the that no one out may be enriched another’s loss and be invoked shall application. justice and where demands its It has when greatly country, may employed expanded been in this be or mistake, to relieve fraud but is not if it from allowed any injustice rights R. C. L. works of others. 25 Sec. 2. premise, on this it follows our
Bottomed that under system jurisprudence limit there is no to the circum- may in may ap- stances that arise doctrine which this plied. In et al. Bank Forman vs. First National Quincy al., et Fla. 79 we that the held steadily doctrine of has subrogation expanding been and growing importance in application and its' extent various subjects persons and classes of that agreement upon out which it arises and which rests may implied. be express or
In the appellant complainant case at bar seeks August 28, to foreclose the 1928. When Godwin, applied the mortgagor, the loan for mortgage, secured he listed the of De- requested 1927,- $1500.00 cember at loan following purposes: for $2000.00 $200.00 repair houses. buy
$200.00 fencing. wire pay mortgage Bank $1500.00 to to First National Perry. & Loan Farm pay in National
$100.00 to stock Association. for the loan application written
He also asserted in his against the mortgages liens were that there no other *12 complainant it directly that to was it to lands but secured an abstract title said that mortgage showed no of the held Alderman. record contemplated every Appellant in and made other words quiet said effort reason all claims to lands to locate appellants with that the mortgagor and the covenanted recorded, note and when should be a first required by lien Federal Loan as the Farm Association. appellant Under this facts we think the state of should subrogated rights of Bank the First National Perry. conclusively shows that the record loan except would not have been made for assurance that this would be such was intention of done and the the parties. epidemic
The rule one a to that who makes loan dis is charge mortgage, pursuant agreement a first to an mortgagor mortgage the he have first on that shall the it, same lands to secure the lender will be rights mortgagee first notwithstanding of the outstanding there is at the same time second lender), (the ignorant. of which he Wilkins vs. Gibson, 374; Savings 113 Ga. 38 S. E. Home Bank vs. Bierstadt, 168 48 N. E. 25 R. C. L. 1339-40. Ill.
In were representing that there no other incumbrances mortgaged, perpetrated on the lands Godwin on fraud appellant. As a locate and failure to result of fraud any appellant lands, adverse claimant advanced to money express to retire first on Godwin’s the agreement lien (appellant) it was have a to first repayment on said lands to secure sum loaned. It grossly inequitable would be under circumstances such to hold appellant entitled, that the against not the holder of the mortgage, to be as the second treated assignee of the first for- thus chance or tune dignity raise the second first of the contrary parties. intention
The application
justice
of this rule works common
all,
prevents
appellant
injury to
who furnished the
money
ignorance
off the first
of the
second,
it gives
payment,
benefit
its
carries
out
intention of the
Al
parties, and leaves
derman,
junior mortgage,
orig
the holder of the
in his
inal position. One
determining
ap
tests'
plication of this
subrogation
rule is whether
or not
place
prior
or retired
puts
lien
the holder
any
prior
lien in
second
than if
worse
lien
discharged.
had
been
&
not
London N.
Ameri
W.
*13
can
Tracy,
Co.
vs.
58 Minn.
But contend the instant ease ruled by the Daniel, decision vs. Boley court 72 Fla. 72 So. L. R. A, A. 1917 734. The latter case turned on the fact that Daniel volunteer, was a not did record, examine the not the represen was victim false tations, duty under no first mortgage and was exercised no care or effort make his a first lien. The in the ease at bar is quite pre It a volunteer, every different. was not it took possible title, pre caution to loan on a clear only was doing vented so mortgagor from fraud of the right of subro- had amounted to a contract which gation. 7, 1931, is in con- August opinion of
In so far as the it is affirmed. this, Otherwise flict it is overruled. Rehearing denied. J.J.,
Buford, C,J., Davis, Whitfield, Brown concur. Appellee. Appellant, McDade, vs. Frank McDade,
Alice 228. 146 So. Division B.
Opinion January 2, 1933. filed February 15, rehearing 1933. Petition for denied Lewis, Appellant; GilesF. Dickinson, & Appellee.
Dickinson Davis, J . This suit. The wife sued the was divorce ap- The has husband. divorce denied. wife pealed.
Testimony heard was taken before the chancellor who conclusions, expressed in His saw witnesses. opinion an filed in with his final decree dis- connection bill, presented missing that the evidence at the were adversary not relief hearing, warrant of divorce did to the wife. testimony picture presented
Turning now to the situation, hearing, upon'the we all too often taken find *14 this, year like where a nineteen old observed cases notes contracts of said proper your that it the desire intention orator B. to secure and obtain from the said W. God right, title, win all the all the claim interest and or otherwise that W. B. said Godwin had any part thereof, your the said land or took and that orator aforesaid on the land above de scribed from the. sai'd Warren or W. B. Godwin for purpose securing interest, the right, the said the said title, claim the said said said W. B. all persons, Godwin and of copy other that a instrument executed W. B. Godwin is your hereto attached and marked as orator’s exhibit prayed your be taken and considered
Notes
notes claims that all lands described purchase of been lands had securing for the given purpose mortgagor appellant with right, all title or claim had and to the said lands. It shown that sufficient Bank the loan to First National