Fagan v. Robbins Ex Rel. Robbins , 96 Fla. 91 ( 1928 )

The facts in this case have been stated as follows: "The appellee as complainant in the court below and referred to herein as the complainant, on March 13, 1926, filed her bill of complaint in the Circuit Court of Palm Beach County, Florida, on the chancery side of said court, against the appellants, William D. Fagan, Jr., Aurelia Fagan, his wife, and Horace B. Chase, II, and another, E. Wilson, herein referred to as the defendants, to foreclose a mortgage bearing date June 8, 1925, covering certain property in Palm Beach, Palm Beach County, and State of Florida, given by the said William D. Fagan, Jr., and Aurelia Fagan, his wife, to the said Horace B. Chase, II, for the purpose of securing the payment of three certain promissory notes in the sum of $8000.00 each, dated June 8, 1925, and payable on or before one, two and three years, respectively, after date, with interest from date at the rate of eight per cent, per annum, said interest payable semi-annually.

It was alleged and shown by the said bill of complaint, among other things, that the said mortgage and notes had, on the 23rd day of June, 1925, by an assignment in writing, been sold, assigned, transferred and set over by the said Horace B. Chase, II, to the said Myra F. Robbins, the said assignment in writing having been placed of record in said county and state on October 13, 1925, and that on December 8, 1925, the semi-annual interest on the said three promissory notes, amounting to the sum of $960.00 became due and payable to said complainant, and was not paid, and that by reason of such default and the lapse of more than thirty days since the said interest became due and payable, the said complainant had exercised the option given her in the said mortgage to declare the aggregate sum mentioned in the said promissory notes and the said mortgage as immediately due.

In the course of the proceedings a general demurrer was filed by William D. Fagan, Jr. and Aurelia Fagan, his wife, also a general demurrer was filed by Horace B. Chase, II, and E. Wilson. The demurrers were overruled by the court below at a hearing thereon on July 28, 1926.

On August 16, 1926, a joint answer to the bill of complaint was filed by the defendants. The answer consisted of paragraphs one, two and three. In paragraph one, the defendants, in substance, alleged that the note was not made payable at any place more definite than West Palm Beach, Florida, and that all of the money allowed by the bill of complaint to be due was, on the day same became due and payable at the home and at the office of Horace B. Chase, II and at the home and at the office of William D. Fagan, Jr.; that said money was kept at said safe places all during the day same became due and payable and for many days thereafter; that the said note was not presented for payment at any of said places or to either of said defendants on the day same became due and payable or at any time thereafter; that the defendants have been ready, able and willing at all times since said amount became due to pay same, are now ready, able and willing to make payments due and tender the amount into court with their answer to the bill of complaint. The record disclosed noprofert in curia.

Paragraph two stated that all of the allegations in the bill of complaint, not herein admitted, are specifically denied by these defendants.

Paragraph three prayed that the complainant be required to accept the amount tendered in court; that the complainant not be allowed solicitor's fees and costs; and that said cause be dismissed.

On November 17, 1926, the solicitors representing the defendants stipulated with the solicitor representing the complainant to waive the statute and rules of court relating to the filing of exceptions to answers in chancery and allow the complainant fifteen days within which to file exceptions to the answer of the defendants and motion to strike, and in said stipulation agreed that the time for the taking of testimony be enlarged for a period not exceeding sixty days after disposition of exceptions to answer and motion to strike answer.

On November 27, 1926, the complainant filed exceptions to the answer of the defendant by which said exceptions the complainant sought to have expunged from the answer all of paragraphs one and three as scandalous and impertinent. At the time the said exceptions were filed, the complainant also filed a motion to strike portions of the said answer. The first part of said motion was addressed to paragraphs one and three of the answer on the grounds that said paragraphs are scandalous and impertinent, are not responsive to the bill, do not allege facts constituting a defense, that said paragraphs purport to set forth that there was no presentment or demand for payment, whereas the notes show on their face that demand and notice of non-payment was expressly waived, etc., are not drawn conformable to Sec. 3118 to 3122 of Rev. Gen. Stats., and fail to allege any matters which would be the basis of a set-off or counter-claim. The second part of said motion was addressed to paragraph two of the answer on the ground that it is merely a general denial of certain allegations of the bill not otherwise admitted by the answer and is not framed according to Sec. 3118 of Gen. Rev. Stats.

On February 2, 1927, after timely notice, the court allowed the exceptions to the answer and granted the motion to strike portions of the answer and made and entered a decree pro confesso against the defendants in said cause. The record discloses no timely motion or other effort to open the decree pro confesso."

A master was appointed, testimony was taken and submitted to the court; final decree was entered; sale of the property was had and after the sale it was found that the proceeds of the sale were not sufficient to pay the amount of the decree. Application was made for a deficiency decree, which was granted against all the defendants.

From the several decrees appeal was taken.

We find no reversible error as disclosed by the record, except that it appears from the record itself that the chancellor misconstrued the force and effect of Chap. 7859, Acts of 1919, and was coerced by the provisions of that Act as he saw and construed them, to enter a decree which he would not in the exercise of his sound judicial discretion, have entered. The learned chancellor has written in the decree the following language:

"And while the court is of the opinion that the entry of a deficiency decree for the full amount remaining unpaid is unconscionable and inequitable, yet by virtue of the 1919 Act of the Legislature pertaining to deficiency decrees, the court believes that one should be entered."

It is a matter of common knowledge that there has long been a diversity of opinion between lawyers and also between judges in this State as to whether or not the provisions of Sec. 2 of Chap. 7839, supra, were mandatory or were directory. There are two good and sufficient reasons why we think that the word "shall" as used in this section of the Act merely confers authority and is not mandatory. One reason for this conclusion is that the apparent and logical purpose of the Act was to provide a statute authorizing the court to enter deficiency decrees against all persons liable for a mortgage debt or liable for a lien debt, whether such liability should be primary or secondary and whether such liability was created by endorsement of the note or as joint maker of the note or grantor or otherwise. Prior to the enactment of this statute deficiency decrees were entered in foreclosure suits under authority of Equity Rule No. 89 and this rule did not apply to other liens. See Johnson v. McKinnon, 54 Fla. 221; 45 So. R. 23; 13 L. R. A. (N. S.) 874. Neither did that rule authorize the entry of a deficiency decree against an endorser of a note. Snell v. Richardson, 67 Fla. 386, 65 So. R. 592. So we conclude that in view of the language used in the case of Johnson v. McKinnon, supra, it was the purpose of the Legislature to extend the provisions of Rule 89, supra, to cover other liens beside mortgage liens and that it was the purpose of the Legislature in view of the language used in Realty Mortgage Co. v. Moore, 80 Fla. 2, 85 So. R. 115, and in Snell v. Richardson, supra, to authorize the court to enter deficiency decrees against obligors other than the makers of the mortgage.

In Realty Mortgage Co. v. Moore, supra, this court say:

"Equity Rule 89 of the Rules of Circuit Court in Equity, granting to such courts in suits in equity for the foreclosure of mortgages, the power to render a decree against the mortgagor for any balance that may be found to be due the plaintiff, over and above the proceeds of the sale or sales of the mortgaged property, does not deprive the court of its sound judicial discretion to determine the right to such deficiency decree."

And further, in the same opinion, the court say:

"A mortgagee may so deal with the mortgagor's grantee of the mortgaged premises as to deny to the mortgagee the right to a deficiency decree against the mortgagor." * * *

"The power vested in circuit courts, in Equity, by Rule 89 of the Circuit Courts in Equity, for the foreclosure of mortgages declaring that a decree may be rendered for any balance that may be found due to the plaintiff over and above the proceeds of sale or sales, is a discretionary one, and may be granted or denied according to the facts and circumstances in each case."

So it will be observed that this court has for all time settled the question that the granting or denying of a deficiency decree is a matter to be determined only by the exercise of judicial discretion and that such decree may be granted or denied according to the facts and circumstances in each case.

It will be observed that Chap. 7839, supra, provides that "all persons having any interest in the said mortgage or lien or the property mortgaged or upon which the lien exists, or having assumed the obligation to pay the mortgage debt, or lien debt, whether such obligation shall be as endorser of the note or notes, guarantor of the debt, or otherwise may be made parties to such suit or proceeding to enforce such lien or foreclose the same."

The Act further authorizes deficiency decrees to be entered in such cases when the proceeds of the sale of the property subject to the mortgage or lien shall not be sufficient to pay the debt and costs for any balance that may remain after the application of the proceeds of the sale of such property to said debts and costs, against the party or parties liable for the mortgage debt or lien debt, whether such liability is primary or secondary and whether such liability is created by endorsement of the note or as a joint maker of the note, or guarantor, or otherwise, of the obligation sought to be enforced and these provisions are made to apply to the representative of any such obligor who is liable either primarily or secondarily when such person so liable is dead at the time of bringing the suit.

Now, if we construe the Act to authorize and permit this procedure by the court in proper cases within the exercise of proper judicial discretion, the Act can be held valid and effective, but if we construe these provisions of the Act to be mandatory as to the several classes of obligors and persons liable as named in the Act, then we must immediately recognize the fact that such construction must in a great many cases bring the provisions of the Act in direct conflict with Section 3 of the Bill of Rights of the Constitution of the State of Florida, in that such construction would require the courts of chancery to enter deficiency decrees against persons liable as endorsers, guarantors or otherwise, although under the issues presented by the pleadings it is made clearly to appear that such persons are entitled to have the issues tried by a jury.

Having reached the conclusion as above stated, it follows that if the Act here under consideration is to be held valid it must be construed as a directory or permissive authority and not as mandatory.

To hold the Act as being mandatory would require us to determine what the legislature has attempted to coerce the judicial action of the courts and that in so doing it has invaded the province of the courts and passed an invalid Act. When construed as a directory and permissive statute, it may be held to be valid and to serve a good purpose, and we so hold. In construing the word "shall" in a legislative Act in which it was contended that the use of such word made it mandatory upon judges to grant certain orders under certain conditions, the Supreme Court of New York in People ex rel., Morse v. Nussbaum, 66 N.Y. Supplement 129, say:

"The claim is that under the present law the justice has no discretion in the matter, and must grant the order simply because it is asked for by the attorney general. It is true that the language of the Act looks very much as if the legislature intended by it to provide for a sort of legislative mandamus against the justice to whom application for the order might be made. But, notwithstanding the law says that he shall grant the order, I think he is still charged with the duty of exercising a judicial discretion, in determining whether he should grant it or not in the specific case. The language means no more than if the Act provided that the justice "may" instead of "shall" grant the order. The Legislature is as powerless to coerce judicial action as the courts are to issue a mandamus against the governor or the legislature, each being independent of either of the others within their respective spheres of duty. People v. Morton, 156 N.Y. S. 136, 50 N.E. R. 791, 41 L. R. A. 231. Similar language is employed in the Code of Civil Procedure with respect to the examination of a party to an action before trial, where it is provided in Sec. 873 that the judge to whom the affidavit mentioned in Sec. 872 is presented, "must grant an order for the examination, if an action is pending." In a case arising under this clause the court of appeals has held that it did not deprive the judge of his judicial discretion in the matter. Jenkins v. Putnam, 106 N.Y. S. 272, 12 N.E. R. 613. I think, therefore, that the mandatory character of the language employed in the law as to the duty of the justice to grant the order in question does not prevent him from exercising his judicial discretion to grant or refuse it."

The reasoning and conclusion of this decision is supported by the Supreme Court of Washington in Clancey v. McElrey, 30 Washington 567; in Boyer v. Onion, 108 Ill. Appel. Ct. R. 612; Becker v. Lebanon, 188 Pa. St. 484, in which latter case the court say:

"The word "shall" when used by the legislature to prescribe the action of a court is usually a grant of authority, and means "may" and even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power."

For the reasons stated, the decree confirming the sale and adjudicating a deficiency against the defendants will be reversed and the cause remanded for such decree as the chancellor in the exercise of his judicial discretion may deem proper to enter in accordance with law and the rules of practice.

Reversed and remanded.

WHITFIELD, P. J., AND TERRELL, J., concur.

ELLIS, C. J., concurs in the opinion and judgment.

STRUM AND BROWN, J. J., dissent.