Mabry v. Knabb , 151 Fla. 432 ( 1942 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is our second consideration of this case. See Chicago Trust Company, et al., as trustee, v. Knabb, 142 Fla. 767,196 So. 200, for fuller statement of facts. Chicago Trust Company employed Mabry, Reaves, and Carlton to foreclose a mortgage. Their fee for the foreclosure not having ben paid, they secured an equitable lien on the lands involved in the foreclosure. A sale was ordered and the lands were bought by O.K. Reaves for the benefit of Mabry, Reaves and Carlton. A sale of said lands for taxes was made at the same time and that decree was purchased by Mabry, Reaves, and Carlton.

Soon after securing title by the foreclosure, Chicago Trust Company leased the lands to L. Knabb for turpentine, timber, wood, and tie purposes. The lease required Knabb to make periodic reports and payments for products taken from the lands. Successor trustees were appointed and at the time this suit was brought, Joseph A. Duner was trustee. Knabb continued to operate the land under his lease but made no reports or payments to the trustee after 1931.

This suit was brought by Knabb in 1938 against Duner as trustee and Mabry, Reaves and Carlton to foreclose tax certificates which he acquired against the lands while working it as a tenant. The trustee Duner answered and alleged that Knabb had not paid for products taken from the land as his lease contract required. He prayed for an accounting and that Knabb be required to pay the amount found due after setting off his tax claim. Mabry, Reaves and Carlton also answered praying that Knabb be required to account to them for the amount of their decrees. They further allege that Duner is insolvent and resides out of the State and that they are without remedy unless they can be subrogated to the rights of Duner against Knabb.

From a decree granting Knabb the relief prayed for and denying Mabry, Reaves and Carlton the relief they prayed for, the former appeal was taken. On the going down of the mandate a master was appointed and much testimony was taken. While the taking of testimony was in progress, Knabb moved to vacate the order of reference on the ground that since it was made, he had made a full and complete settlement with Duner individually and as trustee for all claims held by him. This motion was denied on the ground that Mabry, Reaves and Carlton were entitled to an accounting and to have any unpaid amount against Knabb's claim for taxes in favor of Duner paid them.

On final hearing, the chancellor found, (1) that Knabb was at all times during the life of the lease in arrears in payments thereon in excess of the amounts paid by him for taxes and that on July 5, 1939, when the title passed out of Duner into Mabry, Reaves and Carlton, Knabb owed Duner a balance of $29,073.67, (2) that after Reaves acquired title Knabb took products from the land for which he has not paid Reaves in the amount of $1,859.18, (3) that when Reaves took title there was a balance due on the two decrees of Mabry, Reaves, and Carlton of $7,366.40, (4) that in October, 1940, while the suit was pending and after the trustee had been divested of title, Duner executed to Knabb a settlement paper relieving the latter of all claims and demands under his lease, (5) the effect of this release as between Knabb and Duner was to extinguish the trustee's claim for the rent asserted in his counter claim in its entirety and to leave Knabb's tax claim unimpaired and a first lien against the property. The effect of the release as to Mabry, Reaves and Carlton was precisely the same since the property was of sufficient value to pay them and Knabb, (6) that the attorneys for Duner are not entitled to a fee against Knabb. The chancellor then decreed Knabb a lien on the land for $19,304.06 including $948.97 attorney's fee for foreclosing the tax certificates this being the sum the chancellor found to be due Knabb. From this decree, the present appeal was taken. Appellee filed cross assignments of error.

On the question of whether or not Mabry, Reaves, and Carlton should be awarded the amount of their attorney's fee against Knabb, we do not feel authorized to reverse the chancellor. It is quite clear that Mabry, Reaves, and Carlton were entitled to be paid. They had title to the lands subject to Knabb's lease and tax claim and Duner defrauded them. They might have proceeded against Duner or the lands subject to Knabb's claim but we do not find that they have a claim against Knabb. It appears from the record that the lands were worth enough to pay Knabb's claim and that of Mabry, Reaves, and Carlton.

As to the award of $1,411.85 against Mabry, Reaves, and Carlton for counting turpentine faces, it is quite true that Knabb moved seasonably to dismiss the reference to the master as to this but the chancellor denied the motion. Knabb should have been able to furnish an accurate record as to this. Although the chancellor permitted the Court to proceed with the counting, we think there is not commitment to assess any part of the cost to Knabb and that it should be borne by Mabry, Reaves, and Carlton. Mabry, Reaves and Carlton must have profited by the count and should bear the expense of making it.

We also think the allowance of $1,250 as master's fee was excessive. We see no basis in the record for allowing a special master a larger fee than the statute allows counsel to litigate the cause. In our view, this amount should be reduced by $500. In all other respects, the decree appealed from is affirmed.

It follows that the final decree is affirmed but with directions to modify it by decreeing Mabry, Reaves and Carlton a first lien on the lands to secure their claim; to provide means for enforcing it along with and at the same time the claim of Knabb is being satisfied; that the cost of counting the faces should be assessed against Mabry, Reaves and Carlton; and that the $1,250 allowed the master should be reduced to $750., which we consider ample on this record.

Affirmed with directions.

BROWN, C. J., TERRELL, CHAPMAN and THOMAS, JJ., concur.

ON REHEARING GRANTED