Opinion
Opinion Filed October 5, 1936.
An appeal from the Circuit Court for Duval County, Miles W. Lewis, Judge.
J.W. Harrell and W.P. Dineen, for Appellants;
Rogers, Hazard Thames, for Appellee.
ON SECOND EXTRAORDINARY PETITION FOR REHEARING.
This case was decided adverse to appellee by an opinion filed March 30, 1936. An original petition for rehearing was denied. After that an extraordinary petition for rehearing was denied. So this case is now before us on an extraordinary petition for rehearing upon which this Court, by special permission and order, allowed full oral argument before the Court sitting en banc, in view of the importance of the legal propositions insisted upon in support of the petition.
The gist of this Court's decision already rendered is that in view of the special covenants of the mortgage deed of trust heretofore discussed in this Court's opinion, no suit to foreclose the mortgage can be maintained by minority bond or coupon holders, absent compliance with the special terms and conditions of the mortgage vesting the right to foreclose the mortgage solely in the trustee, except on the specific conditions to the contrary giving that right to bond holders in certain contingencies.
The covenants of the mortgage involved in this case limit the right of foreclosure only, not the right of a bond or coupon holder to seek any other appropriate legal or equitable relief that the holder of even a single bond or coupon of the whole issue may require for his protection, or be entitled to pursue for the realization of his claim.
The validity of reasonable provisions in mortgage trust deeds limiting the right of foreclosure by bondholders by placing the right of action solely in a designated trustee to enforce the security for the benefit of all holders, except upon stated conditions operating otherwise, is generally acknowledged. 2 Jones on Bonds and Bond Securities, par. 816, page 289, et seq.; par. 923, page 394, et seq.
A thorough restudy of the authorities cited to the Court at the oral argument, and in the briefs submitted in support of the present extraordinary petition for a rehearing, has failed to convince us that we have done other than follow the prevailing law on the subject discussed in our opinion of March 30, 1936. Therefore, that opinion is now adhered to and the extraordinary petition for rehearing again denied.
WHITFIELD, C.J., and ELLIS, TERRELL, BUFORD and DAVIS, J.J., concur.
BROWN, J., dissents.