Cole v. Slagg , 130 Fla. 137 ( 1937 )

William V. Cole died testate in Hillsborough County. In his will he provided that his property should be taken, held, and administered, and the net income therefrom enjoyed by his son, Melvin Victor Cole, subject to an income of not less than one hundred dollars per month to be paid by the administrator to his daughter, Vida Blanche Cole, during her natural life. Cole v. Cole, 88 Fla. 347, 103 So. 78; 102 Fla. 917, 136 So. 605; 106 Fla. 226, 143 So. 235.

In July, 1930, Melvin Victor Cole, as executor and trustee, represented to Ellen J. Slagg, the appellee, that in order to preserve the estate from forced sale he had to raise $3,000 with which to pay delinquent city, state, and county taxes, and requested her to make him a loan of that amount. Mrs. Slagg made the loan and it was used to pay taxes on the property belonging to the estate. It was evidenced by notes and was secured by a mortgage on a portion of the property.

The notes and mortgage came due, were not paid, and Mrs. Slagg filed her bill to foreclose. Motion to dismiss was overruled and on final hearing the chancellor found the equities to be with the complainant and decreed a sale of the property to satisfy the mortgage. The property was sold at master's sale and brought $2,000 which was $1521.34 less than the amount due on the mortgage but no deficiency decree was entered. The sale was confirmed and the present appeal was prosecuted from the final decree.

Appellant contends, (1) That she is an annuitant, that Melvin V. Cole was a contingent remainderman, and that not having signed the mortgage executed by the latter to appellee she is not bound by it, and (2) Under the facts in the case appellee is a mere volunteer and cannot be subrogated to the tax liens so paid against the mortgaged premises. Wilson v. Fridenberg, 19 Fla. 461; Fridenberg v. Wilson, 20 Fla. 359; and Wilson v. Fridenberg,21 Fla. 386; are relied on to support this contention.

We have examined the record and our view is that Melvin V. Cole was more than a contingent remainderman. Under the decision of this Court construing the will, Cole v. Cole, supra, he took and held the entire estate subject only to the annuity of not less than $100 per month to Vida Blanche Cole. He was consequently the holder and the annuity for Vida Blanche Cole was all that separated him from complete ownership.

It is also our view that appellee was not a volunteer in this case. She was sought after by Melvin V. Cole, loaned her money, and became a party to this cause on his urgent solicitation. He was vitally interested in preserving the estate and was being pressed for taxes past due and had a tax foreclosure suit by the city in progress against him when the loan was made. A volunteer or stranger is one who thrusts himself into a situation on his own initiative, unprompted by an invitation or inducement.

With this statement of the law as revealed from the facts disclosed by the record, we are impelled to conclude that the decree of the chancellor was correct. The trustee was being pressed for taxes that had to be paid to save the estate. After the mortgage was executed and the taxes paid Vida Blanche Cole collected more than three years' annuities under the will and now seeks to vitiate the mortgage without offering to do equity.

The estate was being administered by a court of equity when the mortgage was executed. For all the record discloses it was necessary to save the estate from dissolution. Under such circumstances it was competent for the chancellor to protect the equity of appellee in the mortgaged property.

We have examined the Fridenberg cases relied on by appellant but they are clearly distinguished from this. In that case it appears that the trustee incumbered the homestead which he was without power to do. This fact clearly distinguishes those cases from the present case.

Affirmed.

WHITFIELD, C.J., and BROWN, BUFORD and DAVIS, J.J., concur.

ELLIS, P.J., dissents.