Ray v. Trice

49 Fla. 375 | Fla. | 1905

Carter, J.,

(after stating the facts.)

It appears that appellenat was in possession of the premises claiming to own same at the time of the- sale under foreclosure, and that before the sale he gave notice of his claim of title and possession to appellee. It apt pears that he purchased the property while the foreclosure suit was pending from a grantee of the mortgagor who also purchased during the pendency of such suit, but he had no actual notice of the foreclosure suit, nor was a notice of Us pendens filed either in Pasco county where the suit was pending or in Citrus county where the property was located. It also appears that appellant was dispossessed of a portion of the property under a writ issued by the Circuit Court of Citrus county directing possession of the property to be delivered to its receiver, R. B. Clark; that Clark retained possession until he was dis-. possessed under the writ of possession in favor of appellee, and that appellee was in turn dispossessed under a writ issued by the Circuit Court of Citrus county directing possession to be restored to Clark, Receiver. Clark by his agents, retained possession until August 7th, 1903, when he was discharged as- such receiver and his possession ceased on that day. Thereupon appellant resumed possession and held same by his agents Talley & McKay until August 11th, when the sheriff dispossessed them under the same writ of assistance which appellee had obtained in March, and which was sought to be vacated by this motion. Neither the appellant, nor his grantor was made a party to the foreclosure proceedings, and it is urged that as he had no -actual notice of the foreclosure proceedings, and as no notice of lis pendens was filed therein he is not bound by the decree of foreclosure, not being a party thereto. We do not deem it necessary to determine this question, nor to decide whether the deed from the mortgagor to appellant’s grantor was sufficient in form to convey the title, as.the order must be reversed upon, another ground. No notice of the application for the writ was given, and without such notice it was error to grant a writ peremptorily dispossessing one in possession of the property who claimed rights therein that he was given no opportunity to assert. Even if appellant had beefi a party to the foreclosure decree (which he was not) it would have been error to grant-the writ without notice. The affidavit to the' petition for the. writ showed that appellant claimed to" be in possession by his agent, and also claimed title, yet ho notice was given him, hor was he mentioned in the writ. The writ only mentioned J. O. Howard, who on its face appeared to be simply an agent of Clark, receiver, and yet this writ after being once fully executed by dispossessing Clark. who in no manner represented appellant, was used a second time to dispossess the latter after he had resumed possession upon the discharge of Clark as receiver, to whom the possession had been restored by an order of the Circuit Court of Citrus county. Such use of the writ issued without notice to appellant was wholly unauthorized (McLane v. Piaggio, 24 Fla. 71, 3 South. Rep. 823; 4 Cyc. 295, 297, 298; 2 Ency. Pl. & Pr. p. 984-985), and, therefore, the court erred in refusing the motion of appellant to be restored to possession- The order appealed from will be reversed with directions to the Circuit Court to grant the motion in so far as it seeks restoration of possession. The appellee will be taxed with the costs of this appeal.

Whitfield, C. J., and Taylor and Cockrell, JJ., concur. Hocker and Shackleford, JJ., being disqualified, took no part in the decision of this causé.