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Hewitt Hewitt v. Punta Gorda State Bank

Supreme Court of Florida, Division B
Jan 13, 1933
145 So. 883 (Fla. 1933)

Summary

In Fed. Land Bank of Columbia v. Godwin, 145 So. 883 Fla. (1933), the Florida Supreme Court applied the doctrine of equitable subrogation to give priority to a new mortgage over an intervening lien placed on record after a first mortgage but prior to the mortgage at issue.

Summary of this case from Anderson v. SunTrust Mortg., Inc. (In re Judd)

Opinion

Opinion filed January 13, 1933.

An appeal from the Circuit Court for Charlotte County, W. T. Harrison, Judge.

Thomas W. Butler, for Appellants;

Leitner Leitner, for Appellee.


The bill in this case is hardly sufficient as a creditor's bill in that it nowhere alleges that the judgment debtor had only an equitable title to the property. George E. Sebring Co. v. O'Rourke 101 Fla. 885, 134 So.2d 556; Cowdery v. Herring 143 So.2d 433. Nor does the bill allege that the fraudulent conveyances are obstacles to the full enforcement of the judgment, not is there any prayer for the vacation or cancellation of such fraudulent conveyances. nor to remove them as clouds on the title to the property. Balsey v. Union Cypress Co. 110 So.2d 263, 92 Fla. 706; Punta Gorda State Bank v. Wilder 112 So.2d 569, 93 Fla. 301. The bill alleges that transfers of certain property were made for the purpose of hindering, delaying and defeating complainant's judgments. This is in substance about all that the bill alleges. The only prayer of the bill was that the property be decreed to be the property of the judgment debtors. While no objection to the prayer of a bill can be raised by a motion to dismiss or demurrer, the allegations of the bill in this case are not sufficient under the authorities above cited, to give the bill equity, either as a bill to set aside fraudulent conveyances, or as a creditor's bill.

The court below should have sustained appellant's motion to dismiss the bill, and its failure to do so constitutes error for which the order appealed from must be reversed. The motion to dismiss the appeal will be denied.

Whether a motion to dismiss, under the 1931 Chancery Act, should be considered, for most practical purposes, as the equivalent of a general demurrer, so that the Chancellor would be authorized to grant the motion with leave to amend, or require an amendment within a specified time to meet the objections raised by the motion to dismiss, otherwise the bill to stand dismissed, are questions which we are not called upon to decide in this case, though they may arise upon further proceedings in the court below. The writer is inclined to think the Chancellor has this authority. See in this connection Section 33 of the 1931 Chancery Act and Mr. Edward McCarthy's Annotations of that Act recently published, pages 58-59.

Reversed and remanded.

WHITFIELD, P. J., and BUFORD, J., concur.

DAVIS, C. J., concurs in the opinion and judgment filed under Rule 21A.


Summaries of

Hewitt Hewitt v. Punta Gorda State Bank

Supreme Court of Florida, Division B
Jan 13, 1933
145 So. 883 (Fla. 1933)

In Fed. Land Bank of Columbia v. Godwin, 145 So. 883 Fla. (1933), the Florida Supreme Court applied the doctrine of equitable subrogation to give priority to a new mortgage over an intervening lien placed on record after a first mortgage but prior to the mortgage at issue.

Summary of this case from Anderson v. SunTrust Mortg., Inc. (In re Judd)

In Godwin, the Mortgagors executed a mortgage in favor of First National Bank of Perry on July 13, 1926. Mortgagors executed a second mortgage to Alderman secured by the same real property on September 6, 1926.

Summary of this case from Anderson v. SunTrust Mortg., Inc. (In re Judd)

In Godwin, the Florida Supreme Court undeniably expressed a more relaxed view of subrogation than it did in Boley. For one, it made no mention of the distinction between legal subrogation and conventional subrogation.

Summary of this case from Picker Financial Group L.L.C. v. Horizon Bank

In Federal Land Bank of Columbia v. Godwin, 145 So. 883 (Fla. 1933) the borrower had given a bank a first mortgage and Alderman a second mortgage.

Summary of this case from Suntrust Bank v. Riverside Nat. Bank
Case details for

Hewitt Hewitt v. Punta Gorda State Bank

Case Details

Full title:CLARENCE W. HEWITT and ELIZABETH HEWITT, Appellants, v. PUNTA GORDA STATE…

Court:Supreme Court of Florida, Division B

Date published: Jan 13, 1933

Citations

145 So. 883 (Fla. 1933)
145 So. 883

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