133 So. 2d 744 | Fla. Dist. Ct. App. | 1961
Appellants, who were the defendants below, appeal from a summary final decree which foreclosed a second mortgage on their property. On consideration of the pleadings and certain evidentiary matter submitted by the plaintiff the trial court held there was no genuine issue of material fact and that plaintiff was entitled to a final decree of foreclosure as a matter of law. We conclude the chancellor was eminently correct in finding an absence of genuine fact issue, but was in error in holding plaintiff entitled to foreclosure.
The plaintiff was the mortgagee L & L Investors, Inc. The complaint alleged that the mortgage had been given to the plaintiff corporation by'F & G Construction Company on the 14th of November, 1958, to secure an indebtedness from the latter to the former, then alleged the obligations thereunder and default in payment, and prayed for foreclosure. The complaint did not reveal the factual background, the prior ownership of defendants or the nature of the transaction by which the property came into the hands of F & G Construction Company. The only allegations in the complaint relating to the defendants were as to their ages, places of residence and their ownership following the final deed to them by Lipsitz and Levin. The defendants answered. They contended therein that the mortgage sought to be foreclosed was invalid for want of title in the mortgagor.
On the proceeding for summary final decree certain material facts were disclosed, including the following. The defendants, two negro women, owned four unimproved lots in Liberty City, in Miami. One Con-stanz DeStefano undertook to construct a 20-unit apartment house thereon for them.
“ * * * It is elementary that any interest in real estate which may be sold or assigned may be mortgaged; and, conversely, that some estate or interest capable of being mortgaged, held by the mortgagor, is essential to the existence of a mortgage. When a transaction constitutes a mortgage, therefore, there must be, either, independently of the transaction, some interest in the mortgagor capable of being mortgaged, or through the transaction itself such interest must be acquired by the mortgagor. * * * ”
Nothing occurred to remove the adverse effect of these disclosures on the plaintiff’s case. The plaintiff did not seek reformation, and no basis for reformation was established. On the application for summary decree plaintiff sought to avoid the difficulty by contending that there was a “typographical error and a scrivener’s error,” a contention not supported and actually refuted by the record showing of incapacity of the mortgagor for want of title.
Appellee contends, however, that appellants were estopped to assert the invalidity of the mortgage because the property was reconveyed to them subject to the mortgage.
For the reasons stated, the judgment appealed from is reversed and the cause is remanded with directions to enter summary final decree for defendants dismissing the complaint.
Reversed and remanded.
. See Spinney v. Winter Park Building & Loan Ass’n, 120 Fla. 453, 162 So. 899; Zimmerman v. Hill, Fla.App.1958, 100 So. 2d 432.