50 Fla. 590 | Fla. | 1905
John R. Martin filed a hill in the Circuit Court for Marion county against Henry E. Schoeflin and E. T. Helvenston to foreclose a mortgage on certain real estate to secure the payment of a promissory note alleged to have been executed by said Henry E. Schoefln to John W. Pearson, which note and mortgage are alleged to have been assigned by Pearson to one John Y. Bettys and by Bettys assigned to said John R. Martin. The bill alleges that in June, 1900, subsequent to the execution and record of the mortgage Henry E. Schoeflin executed a deed of conveyance of the same land to E. T. Helvenston, and that the claim of Helvenston is inferior to the mortgage sought to be foreclosed. Helvenston answered denying that his claim and title to the land is subject to the mortgage lien, and averring that his claim of title to and possession \of the land is based upon tax deeds specifically referred to in the answer under which he entered upon actual adverse possession of the land in May, 1900. He further admits that he procured the deed of conveyance from Schoeflin and wife, but denies that he claims the title to and possession of the land under and by virtue of said deed of conveyance from Schoeflin and wife, and avers that he procured the same for the purpose of divesting said Schoeflin and wife of all interest that they might have, or thereafter claim, in said property, and avers that he was in actual adverse possession of the property long before Schoeflin and wife executed the deed to him. A replication was filed and testimony was taken by an examiner. A decree of foreclosure was entered in which
The refusal of an application for confirmation of a sale of real estate made pursuant to a foreclosure decree cannot be the basis for an assignment of error where it appears that shortly after such refusal the court made an order of confirmation, not appealed from, and no injury to appellant is shown.
A tax title claimed to be adverse and paramount to the rights of both mortgagor and mortgagee is not a proper subject of adjudication in a suit to foreclose the mortgage. See Brown v. Atlanta Nat. Bldg. & Loan Ass’n., 46 Fla. 492, 35 South. Rep. 403.
Where the language of a decree is open to more than one interpretation it should be interpreted so as to make it correct and proper with reference to the pleadings and proceedings in the case. See Clay v. Hildebrand, 34 Kansas 694, 9 Pac. Rep. 466; 5 Ency. Pl. & Pr., 1060.
The language of the foreclosure decree of February 23rd, 1905, “that in the event said property is sold that the said defendants Henry E. Schoeflin and E. T. Helvenston and all persons claiming by, under or through them since the recording of the said mortgage be and they are forever barred and foreclosed of all rights and equity of redemption in and to said property or any part thereof” is not necessarily an adjudication of the title derived through the tax deed as E. T. Helvenston claimed in his answer, which title if valid extinguished all other titles; but the quoted language of the decree is subject to the
The orders appeal from are affirmed.