The Prudence Co. v. Garvin , 118 Fla. 96 ( 1934 )

The appeal here is from an order appointing a Receiver.

It is contended by the appellant that the order appointing the Receiver is erroneous because the appellee was not entitled to the appointment of a Receiver in view of the fact that the mortgage sought to be foreclosed in this case against a certain piece of property was in the process of foreclosure against other parcels of property also included in the mortgage.

It is contended that because suit had been instituted against certain parcels of land included in the mortgage that an additional suit could not be maintained to foreclose the same mortgage as against other property included therein. We do not think that position is tenable where it is alleged in the second foreclosure suit that the sale of the property described in the first suit will not be sufficient to satisfy the claim of the mortgagee foreclosing in the second suit and further that complainant will not be able to realize enough from the proceeds of both suits to satisfy the mortgage indebtedness due to the complainant. Knowles v. Lawton,18 Ga. 476, 63 Am. Dec. 290; Hawe, et al., Godfrey Snydaker, et al.,86 Ill. 198. In Jones on Mortgages, Vol. 3, page 237, we find the rule stated thus: "If one holds two mortgages on different parcels of land, or one mortgage on two parcels of land, to secure the same debt, in the absence of any equities in subsequent purchasers he may foreclose either one without the other; and a foreclosure of one will bar a foreclosure of the other only where the land foreclosed is equal in value to the debt." (Italics supplied.)

The allegations of the pleadings show that there are no intervening equities in favor of purchasers for value without notice.

The record as a whole discloses that there was no abuse of judicial discretion in the appointment of a Receiver.

The order appealed from should be affirmed. It is so ordered.

Affirmed.

DAVIS, C. J., and WHITFIELD and TERRELL, J. J., concur.

ON REHEARING.