*1 299 fаct, not governed alone in error plaintiff appears to that argue, the statutes each affect a single only county. The fact are that two counties affected the pres- ent not statute does make a constitutiоnal one.
This
court laid down
doctrine
of Carlton
case
al.,
975,
v. Johnson,
15,
55
et
So.
61 Fla.
that:
“The effect of the
that laws
organic provision requiring
upon stated
shall not be
or
subjects
special,
local
but shall
state,
and of
general
оperation
uniform
throughout the
is to forbid the
a
enactment of
law
stated subjects
that is arbitrarily
several
applicable
or
one
state,
territorial
where
subdivisions
a
on
general
law
the same subject could
be made
proрerly
applicable to the
entire state
all
portion
or to
of the state
sit-
similarly
uated or conditioned
with reference
the subject regu-
State,
lated. See Gentile v.
' P. J., Whitfield, J., concur. Chapman, Ellis, J.,C. and Terrell J., Buford, concur opinion and judgment. George Griley, Trustee, L. Marion v. Com-
pany, Corporation, Florida et al.
Opinion Filed Novemer 1937. Opinion on Filed March 1938. Rehearing
Further Rehearing Denied 1938. June *2 Price, Price & for Appellant; Marion E. Sibley, Grady Harris, C. Pine & Giblin and William (of K. for Appellees. Tallahassee) Whitfield 1924, In September, Henry Tuttle and wife Terrell, executed a tr'ust deed favor of G. L. Miller Bond and Mortgage Company, the purpose being to secure the pay a loan represented ment of 180 bonds aggregating $85,000 The trust principal. deed described valuable rentаl In Miami. May, Marion Mortgage Com pany, successor trustee mortgagee G. I.. Miller Bond instituted Chancery suit in to fore- Mortgage Company, close said deed. None of bondholders When insti- defendant. the suit to foreclose was tuted, the Florida rе- designated Trust was Company ceiver property, charge, for the took it op- it for erated fourteen months. A decree about of fore- in May, closure following, entered July purchased at Master’s Sale Marion $40,000. at bondholders Florida forthwith turned over Marion Mortgage Company, latter about purchaser, *3 $4,500 in cash the receipts net being from its operation of during receivership. property 1928,
In September, Marion in its Mortgage Company $8,500 In- individual borrowed from Northern capacity vestment therefor Company, payable executed its note Sep- 1, 1933, a tember and said note with secured mortgage trust in favor of payee the note. of November, 1928, In purchased said ap- note was latter pellant George Griley. L. note and executed and note to an Griley sold without order of the court in or without trust instrument. authority A deed was then Marion warranty executed by to the Company said of Florida.describing trust and was the latter operated by company till it was in the hands placed of H. Therrell as liquidator, 1931, November, in at which it (Trust time of Florida) in was to of indebted estate sum $9,461.06. None of the beneficiaries of estate knew Northern of Investment Company mortgage sale note mortgage and till afterwards. long Griley 1933, George
In L. August, instituted suit Griley to fore- his Marion mortgage, close Mortgage Company and others parties were made defendant individually. The Trust Com- Florida, Smith, party Liquidator, M. A. nor any as beneficiaries, were named as Appellees, as defendants. defendants, Griley’s filed their answer to bill to fore- close, of which parts were stricken on motion of the latter. taken, A special appointed, master testimony was was a Octоber, decree of 'final foreclosure 1934. was entered ' trustee, A.M. Smith was forthwith as discharged Rupert L. Rackley appointed was and took place his over trust property for administration. November,
In L. Rupert as trustee Rackley filed petition to a petition intervene and later rehearing foreclosure decree the Griley foreclosure suit. The n petition intervene granted part and Rackley was permitted file his defense Griley foreclosure suit. Montgomery Whaling permitted also intervene and he and Rackley filed to Griley’s answers bill to foreclose.
In an February, filed amended Griley bill of com- plaint in his Rackley, suit making Montgomery foreclosure others, Whaling, defendant. The amended bill of сomplaint was twice amended and among things other alleged that Marion Mortgage Company the mort- executed gage note him purchased im- (Griley) virtue of powers plied vested in it and that defendants *4 estopped were the of the deny that validity mortgage, t.o had ratified the they note and mortgage guilty and were of respect with laches to its challenging validity. as
Rackley his answer filed to Griley’s bill of com- 1935,- plaint amended August, wherein he challenged the of the note validity mortgage, and the power of Marion to execute them and that Grilev had purchased the note at a large discount with knowledge of invalidity, that at the time the note and mortgage were purchased executed and by Griley, thе trustee ample had cash protect funds' to and administer the trust mortgage loan, note that and said and without the making scheme between result of a as the executed and sold the individual use raise money thereto to Other, an- filed defеndants Florida. of of import. to same swers testimony to take special appointed
A master was answers, make bill and and issues amended by special master report of law and fact. findings.of his or express had no that Marion found Mortgage Company mortgage purchased the note to execute and implied power motion Griley, supplemental stated that the facts and were incorrect for confirmation of the sale master’s exe- untrue, mortgagе were that the time note at said and Griley, possession had his and sold Trustee cuted to administer the sufficient cash funds and protect in due purchaser that not an innocent property, Griley the va- course, that not estopped dеny defendants were were not they guilty that mortgage, note lidity laches, mort- the note and of had not they ratified recover on and that was not entitled to gage, Griley ‘ . note and mortgage. findings mas- special The Chancellor sustained ter bill оf “with complaint dismissed amended the plaintiff any unto saving reserving but prejudice, he rights ought all entitled equity rights “mortgagor-defend- to the subrogation way decree, From instant such appeal prosecuted. ant.” state, facts, are not in counsel accord as of this Out evolved, ques- we conceive the but primary to the questions a whether or not a trustee of resulting tion to be that of to execute secured power trust has at the time executed he had in when he funds and administer ample preserve possession res.
It admitted that in the express power is was vested no trust by settler to encumber the it property and is power settled that an implied only law such arises when to preserve exercise thе trust estate necessary becomes from or some other Smith emergency. waste v. Massa- Co., chusetts Mutual Life Insurance 116 Fla. 156 So. 498; Trusts, Borgert on 766. Even exer- paragraph when cised, reasons, for it these must be done leave of cоurt.
The record that was produc- discloses a substantial over ing income and above administration ex- at penses in question time the mortgage executed had been so from of the doing beginning trustee- ship, in a good repair, the trust state no taxes were due on was a. there balance substantial in the hands of the trustee executed. when mortgage was the truth appellant challenges found foregoing Master by the but the evidence ample is his find- support no reason ing is shown for him on point. reversing this Griley, the purchaser of was on notice of means, facts these for he could available them, have himself and the further fact that advised express power trustee had no execute the mortgagе. He was also on notice of the any mortgage fact that exe- by the trustee cuted for purpose preserving must be done order Not the court. exer- having facts, cised available to ascertain he means these cannot he now claim that is a purchaser due course or he is an innocent purchaser value.
Were beneficiaries of estate necessary par- ties to foreclosure a pertinent suit also question urged for our solution.
The Marion Mortgage Company without being the power trustee, to name a successor its designation of the
305 - of Company Florida such was without as and authority void. The Trust Florida was in in- of sued dividual capacity to in other capacity. and was no referred All in pleadings other suit in in- foreclosure were dividual of the capacity pleader and the decree was directed to the Trust of Florida individually though held the as trustee. facts,
Under such the decree not statе enforce able against the trust and subject set to be aside at time for purpose of any permitting indispen parties sable to The be made defendant. law is parties set that in tled prop suits against affecting erty, the trustees well que cestuis be as as should Brown, defendant. v. 92 23 Cary U. S. L. Ed. 469. laches, questions
Other* have to do raised with acquies- cence, ratification, waiver, estoppel and part raise any beneficiaries as to question to validity note and all mortgage. turn on the evidence which They has been ample examined to support and found decree of the chancellor. challenged finding appellant His but we find basis to him no reverse on this point. dismissal,
In decree of his chancellor reserved to complainant he have right be any equity might subrogated the rights of defendants. It is contended proceeds the note mortgage used administration expenses pay legitimate other taxes the trust property.
If the Chanсellor finds contention to this' be well grounded, he should equity permit the' for such portion foreclosed 'of it was used faith good any expense pay legitimate the trust. operating below judgment is affirmed. Affirmed. C. J.,
Ellis, Buford, J., concur. Chapman, opin- P. concur Whitfield, J., J., ion and judgment.
Brown, J., *7 in the conclusion. concurs Rehearing Motion for
On Opinion was herein November filed Per Curiam. the decree Chancellor. for Petitions affirming have sup which been to be rehearing permitted filed ported These have and the briefs. been read' extended wholе case been reviewed. again has
We reason from or the doc- modify find to recede no trine in expressed opinion except heretofore filed may the Chancellor say that when mandate down goes permit the thе foreclosure Appellant proceed with this for such cause of the amount as was portion claimed shown to have been faith ex- used good pay any legitimate ex- pense for trust. to save the time and operating thе This of a pense new suit.
This what part was intended concluding opinion our former in all respects other affirmed. ' It is so ordered. Terrell, J., Ellis, Wi-iitfield, and' C. Buford Chapman, J., concur. J. Rehearing.
An Further Motion for Order on (cid:127) disposition on motion of Ap- сause on for This comes opinion the terms of the to make definite filed pellant 30, 1938, wherein that Appellant we found March should for permitted portion to foreclose “such or the amount was shown to have been claimed usеd expense good legitimate faith pay any operating trust.” ref- legitimate expense the trust has
Any for operating erence any expended amounts to save dissipation from re- contemplate and would any amounts benеfic- ceived from proceeds of the mortgage iaries or betterments. dividends motion is overruled. It is so ordered. J.,
Whitfield, Chapman, Terrell, Buford concur.
Brown, J., not participating.
Realty
Inc.,
Corporation,
L. E.
Estates,
Miakka
v. B.
Mary
M.
et al.
Blackburn,
corporation,
a dissolved
Division B.
Opinion Filed March 1938. 4, 1938. Rehearing Denied June