65 Fla. 265 | Fla. | 1913
On March 3, 1902, a final decree was filed in a foreclosure proceeding begun in 1895 in Pasco
It is not necessary to discuss here the requisites of a petition for a writ of assistance or the technical rights of the appellee to maintain proceedings for the writ, since upon a full consideration of the entire record it is clear the appellant Ray has no rights in the lands in controversy as against the judgment creditor or the purchaser at the foreclosure sale; and even if the title acquired by the receiver of the trustee for the mortgage bond holders who purchased at the sale has been transferred, the trustee has an interest in having the possession awarded to the holder of the legal title under the sale, and Ray is not in a position to controvert the right of the trustee to a writ of assistance. The delay in applying for this writ of assistance appears to be accounted for by a previous application reviewed by the court in Ray v. Trice, 48 Fla. 297, 37 South. Rep. 582; same in 53 Ela. 864, 42 South. Rep. 901.
The deeds of conveyance from the original mortgagor, the Globe Phosphate M. & M. Co., to Mrs. McKay, and from Mrs. McKay to Ray were not filed for record until January 5, 1903, several months after the final decree in the foreclosure suit was rendered, and the same day the sale under the decree took place.
Unless Ray was a bona fide purchaser of the property
Section 1649 of the General Statutes of 1906 provides that: “No suit at law or in equity shall operate as a lis pendens as to any property involved therein until, there shall have been filed in the office of the clerk of the circuit court of the county where the property is situated, and shall have been recorded by him in a book to be kept by him for the purpose, a notice of the institution of such suit, containing the names of the parties, the time of the institution of the suit, the name of the court in which it is pending, a description of the property involved, and a statement of the relief sought as to such property.” This statute operates as constructive notice of pending litigation when its terms are complied with, but it does not affect or interrupt the operation of other provisions and principles of law applicable to property rights that are involved in litigation. In this case it is admitted that no Us pendens was filed and recorded as is required by the statute; but if a purchaser of the property pending the litigation had actual knowledge of the litigation or does not pay value for it, or if he does not comply with the statute, Section 2480, Gen. Stats., requiring conveyances of land to be recorded before they are good as against creditors or subsequent purchasers for value and without notice, such purchaser pending litigation is not protected against the conse quences of the pending litigation or the rights of creditors and subsequent purchasers under judicial process. The decree in this case was rendered and recorded long before the conveyances under which Ray claims were recorded, and it does not appear that the lien creditor under the foreclosure decree had any notice or knowl
In addition to this, there is evidence that Ray knew, or reasonably should have known, that Mrs. McKay was not a purchaser for value from the mortgagor, and that Ray knew of and assisted in maintaining the litigation over the mortgage after the conveyance was made to him and that his payments were small and were used in the litigation, and that Ray had no possession of the lands at the date of the decree. Even though no Us pendens was filed to afford constructive notice of the mortgage foreclosure proceedings Ray had actual knowledge of the litigation at least after he took his alleged conveyance and had knowledge of his grantor’s lack of real beneficial interests and did not record the conveyances under which he claims till after the decree of foreclosure became effective, consequently Ray had no
The decree awarding a writ of assistance is affirmed.