Murrell v. Farmers Bank & Trust Co.

Per Curiam.

The Appeal herein is “from the judgment and decree entered from this court,” which presumably means the orders and decrees made in the cause since the affirmance of the decree adjudicating the equities of the case Murrell v. Farmers Bank and Trust Co., 82 Fla. 506, 90 South. Rep. 384.

Originally a bill of complaint was filed by the Farmers Bank and Trust Company against Lila K. Murrell and her husband 3L R. Murrell, John M. Murrell and Peoples Bank of Sanford seeking to enforce the lien of a mortgage upon land for $16,000.00 given by John M. Murrell to the Farmers Bank and Trust Company, the Peoples Bank of Florida and Lila K. Murrell and K. R. Murrell, her husband, being made parties defendants because subsequent to the mortgage given by John M. Murrell, he conveyed the property to Lila K. Murrell who, joined by her husband executed a second mortgage upon the property to the Peoples Bank of Sanford. The defendants Lila K. Murrell and her husband K. R. Murrell, by answer admit “that after the conveyance of said property described by the said John M. Murrell to them, they made and executed unto the defendant, Peoples Bank of Sanford, a further mortgage on said described property given to secure the sum of $7,847.68.”

The defendant Peoples Bank of Sanford by answer admitted that its mortgage was'inferior to that of the complainant, the Farmers Bank and Trust Company; and by petition the Peoples Bank set -.up their mortgage claim, alleged a breach of conditions of the mortgage and “submits its rights herein unto this Honorable Court, as the same may appear and upon proper proof of complainant’s claim'herein, and in the event of the sale of the premises herein described by virtue of a decree of this Honorable Court, your petitioner requests and prays that after the payment of complainant’s claim and all the costs and expenses herein, that the surplus, if any there be, derived from the sale of the premises hereinabove described, be paid into the registry of the court to be applied to the satisfaction and payment of your petitioner’s notes and mortgages above set out and the expense and attorney’s fees incurred by your petitioner herein, as provided for in said notes and mortgage deed.”

The complainant Farmers Bank and Trust Company interposed no objection to the petition or to any proceedings thereunder. Prior to the affirmance of the final decree the defendants Lila K. Murrell and K. R. Murrell made no direct response to the petition of the defendant the Peoples Bank.

A special master was appointed “to take the proof of the- material issues raised by the pleadings in this cause, and further to make an account of such sum or sums of money as may be due by tbe defendants to tbe complainant under the mortgage sought by the bill of complaint herein to be foreclosed.”

The master, over the protest of counsel for the defendants Lila K. Murrell and K. R. Murrell, took and reported to the court testimony as to the amounts due on the mortgage held by the Peoples Bank.

The final decree contains the following: 11 It further appearing to the Court that the Peoples Bank of Sanford, one of the defendants in this proceedings, has filed its answer to the bill of complaint admitting the allegations contained therein with reference to a certain second mortgage held by it on the property sought to be foreclosed, amounting to $7,847.68 and it further appearing to the court that the Peoples Bank of Sanford, as one of the defendants herein, has filed its petition in this cause, setting forth that the mortgage held by it as aforesaid is past due, and that no part of the principal thereof, or any interest thereon, has been paid, and it further appearing to the court that the said mortgage is outstanding, past due and unpaid.

“Therefore, it is further ordered, adjudged and decreed that upon'the rendition of the final report of the Special Master in Chancery, if there be any surplus remaining on hand, derived from the sale of the aforesaid premises under this decree of foreclosure and sale, that the said Peoples Bank of Sanford, a corporation, shall have leave to make proper application to this court for the payment of said surplus to it to be applied upon the mortgage indebtedness 'due to it by the defendants, Lila K. Murrell.and husband, K. R. Murrell, as far as' same will extend. ’ ’

This decree was affirmed on appeal. Murrell v. Farmers Bank and Trust Co., 82 Fla. 506, 90 South. Rep. 384.

. Among the assignments of error on the former appeal were:

“10. The court erred in rendering final decree directing payment to be made to the Peoples Bank of Sanford a corporation of the surplus remaining in the hands of the court.

“11. The court erred in rendering a final decree without full opportunity given and granted defendants to adduce the testimony necessary to fully establish their contentions.

“12. The court erred in rendering the final decree for the complainant and for one of the defendants, the Peoples Bank of Sanford, Florida.”

Thus it appeal’s that the adjudication of equities in favor of the Peoples Bank was affirmed and became re.s adjudicaba.

On this appeal the assignment of errors in effect are that the sale was made eleven days after the mandate from the former appeal was filed in the lower coiirt, and that the proceedings awarding to the Peoples Bank the money remaining in the registry of the court after paying the mortgage of the Farmers Bank and Trust Company are not according to law.

The former decree required the mortgage debt to be paid within ten days. An appeal was taken after the ten days, and on the return of the mandate of affirmance there was no error in confirming a sale made eleven days thereafter.

There was no error in denying a motion by Lila K. Murrell to strike the petition of the Peoples Bank, since it was appropriately filed in the cause and acted on in the absence of objection from the complainant the Farmers Bank and Trust Company, and since the defendants Lila K. Murrell and her husband K. R. Murrell had by answer admitted the execution of the mortgage to tbe Peoples Bank for the amount stated by tbe bank in its petition and asked to be paid after tbe prior mortgage of tbe complainant Farmers Bank and Trust Company is paid.

The court took testimony as to counsel fees to be allowed on the mortgage of the Peoples Bank.

Tbe court upon argument for both parties awarded tbe money in tbe registry of tbe court to tbe Peoples Bank as a payment on its mortgage, with tbe privilege of a deficiency decree against tbe defendant K. R. Murrell for the balance unpaid.

In view of tbe answer of the defendants Lila K. Murrell and her husband K. R. Murrell admitting the execution of tbe mortgage to tbe Peoples Bank, and of tbe failure of such defendants to make any due and proper defense to the petition of the Peoples Bank for tbe payment to it of tbe money in tbe registry of the court after payment of tbe mortgage of tbe complainant tbe Farmers Bank and Trust Company, though tbe defendants were represented by conusel at tbe bearings and when tbe testimony was taken as to the- amount of tbe debt due and tbe attorney fees due on tbe mortgage admitted to have been executed to tbe Peoples Bank, it cannot be said tbe defendants have not bad their day in court to defend against the mortgage if they bad a defense.

Affirmed.

Whitfield, P. J., and West and Terrell, J. J., concur. Taylor, C. J., and Ellis and Browne, J. J., concur in tbe opinion.