Hardee v. Bennett

Davis, J. The appellee, Bennett, sold and conveyed to the appellant, Lillian Lincoln Hardee (formerly Lillian H. Brogan) four lots in Palm Beach. To evidence and secure the balance of the purchase price of these lots Miss Brogan (Hardee) gave the notes and mortgage which Bennett brought a suit to foreclose in this case. Appellant sold and conveyed the property to one Ferguson, who assumed the Bennett mortgage, and, to evidence and secure the balance of the purchase price due to appellant, gave her certain notes and a mortgage on the same land. Ferguson then conveyed the property to *284 Allison & Qninn, who conveyed it to one Karman. All of these assumed both mortgages. The several grantees failed to pay either mortgage when it became due. Miss Brogan (Hardee) then sued Ferguson, Allison, Quinn and Karman to compel them to pay Bennett’s first mortgage, and in her bill she asked that her own mortgage be foreclosed. This suit was before this Court and considered under the title of Brogan v. Ferguson, 101 Fla. 1306, 131 Sou. Rep. 171, 101 Fla. 1311, 133 Sou. Rep. 317. Appellee Bennett, who was made a party to the suit just referred to, answered that he was the holder of the first mortgage and averred that he should not be required to execute a satisfaction thereof until he had been fully paid. The bill brought by Miss Brogan (Hardee) against Ferguson, Allison, Quinn and Karman was filed on February 7, 1930. On November 10, 1930, Bennett commenced the foreclosure of his first mortgage, making his original mortgagor, Lillian H. Brogan, now Lillian Lincoln Hardee, and her husbnd, together with one Karman, the present title holder, parties defendant. ° Neither Ferguson, Allison nor Quinn the intermediate grantees who had undertaken to assume the Bennett mortgage, were made parties defendant. To the bill filed by Bennett to foreclose his mortgage, Lillian H. Brogan (Hardee), the mortgagor, filed a plea setting up the above facts and averred that her suit (Brogan v. Ferguson, supra) had been prosecuted as diligently and vigorously as possible. The Circuit Judge overruled the plea, and the mortgagor appealed. The only assignment of error challenges the ruling on her plea. ¥e are of the opinion that there was no error in the ruling of the Chancellor. The bill to which the plea was interposed was one filed by Albert Y. B. Bennett, the ap *285 pellee, to foreclose the first mortgage which had been given to him by Lillian H. Brogan, the appellant, as mortgagor. Archie F. Karman was made a party defendant to that suit, because he was the then holder of the fee simple title to the property. The original mortgagor, Miss Brogan, was made a party to the suit because, in addition to being the original mortgagor, she held a second mortgage on the premises covered by the complainant’s first mortgage. The plea which was overruled detailed several subsequent conveyances of the property encumbered by complainant’s mortgage, and certain assumptions of that mortgage. These are the assumptions which later became the subject of litigation which was formerly before this Court in Brogan v. Ferguson, supra. In none of the transactions between Miss Brogan and the others involved in her separate suit, the pendency of which she now attempts to plead in abatement of the foreclosure of the Bennett first mortgage in the instant ease, does it appear that Bennett became a party. Bennett’s rights as a first mortgagee accrued and became fixed at the time he sold the property to Miss Brogan and took back from her the notes and mortgage involved in the present case. Miss Brogan, as a debtor of Bennett, could not by any sort of arrangement or transaction subsequently had between herself and third persons, create any condition or circumstance which would affect her liability to Bennett without his acquiescence or participation therein, neither of which appears in the present ease. The fact that by the transactions described in the suit of Brogan v. Ferguson, supra, Miss Brogan became a surety for Bennett’s debt and Ferguson, Allison, Quinn and Karman became principal debtors as between, themselves toward the original mortgagee (Slottow v. Hull Investment Co., 100 Fla. 244, 129 Sou. Rep. 577), does *286 not affect the situation here, nor sustain the plea which was overruled by the Chancellor. As pointed out in the opinion in Slottow v. Hull Investment Co., the relationship of suretyship exists between the grantor and grantee who assumes the payment of the mortgage, but it does not affect the relations of the mortgagor and the mortgagee inter sese. The contract rights of the mortgagee cannot be changed by acts of the mortgagor and his grantee to which the former is not a party. It was also pointed out in the case just cited that while a purchaser who assumes the mortgage becomes as to the mortgagor the principal debtor and the mortgagor a surety, the mortgagee, unless he has assented to such an arrangement, may treat both as principal debtors and may have a personal decree against both. In the ease at bar, the object of the appellee’s bill was to foreclose the first mortgage which he held against the appellant. The plea which the chancellor overruled does' not show that appellee,' as such mortgagee, ever became a party to the subsequent transactions between the mortgagor and her grantees who assumed and agreed to pay the mortgage. Bennett, as the senior mortgagee therefore cannot be compelled to delay his proceedings to enable the appellant and the parties with whom she dealt subsequent to the first mortgage to settle their rights between themselves. There was no error in the order appealed from and it is therefore Affirmed. Whitfield and Terrell, J.J., concur. Buford, O.J., and Ellis and Brown, J.J., concur in the opinion and judgment.