Beth W. Corp. v. Miami Beach Federal Savings & Loan Ass'n

28 Fla. Supp. 128
CourtCircuit Court of the 17th Judicial Circuit of Florida, Broward County
DecidedMarch 24, 1966
DocketNo. C-65-2831
StatusPublished

This text of 28 Fla. Supp. 128 (Beth W. Corp. v. Miami Beach Federal Savings & Loan Ass'n) is published on Counsel Stack Legal Research, covering Circuit Court of the 17th Judicial Circuit of Florida, Broward County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beth W. Corp. v. Miami Beach Federal Savings & Loan Ass'n, 28 Fla. Supp. 128 (Fla. Super. Ct. 1966).

Opinion

JOSE A. GONZALEZ, Jr., Circuit Judge.

Partial summary final decree: This cause came on to be heard on motions for partial summary final decree filed by the defendants Miami Beach Federal Savings & Loan Association and Rosalyn A. Rosenman, and the court having considered the pleadings, affidavits and record in this cause, finds that there is no genuine issue as to any material fact as to affirmative defenses pleaded by said defendants, and that said defendants are entitled to a partial summary final decree as a matter of law.

The plaintiff’s complaint shows that the plaintiff was the owner of a large number of acres of land in Broward County, and that on July 1, 1964 the plaintiff executed and delivered its warranty deed conveying 7.44 acres thereof to Windsor Properties, Inc., [130]*130a Florida corporation (“Windsor” hereafter) which deed was recorded on July 28, 1964 in the public records of Broward County. The deed was regular and normal on its face, recited a valuable consideration and had affixed thereto substantial documentary stamps. Thereafter the land covered by the deed was subdivided and a plat thereof entitled “Harvest Time Subdivision” was recorded in the public records of Broward County. Subsequent to all of the foregoing, Windsor executed and delivered to Miami Beach Federal Savings & Loan Association (“Miami Beach Federal” hereafter) and to Rosalyn A. Rosenman (“Rosenman” hereafter) mortgages encumbering specified lots in the subdivision.

Plaintiff claims that its deed to Windsor is void because (1) the plaintiff received no consideration, (2) the deed was procured through fraud, and (3) the grantee, Windsor, was not a de jure or de facto corporation at the time of execution, delivery and recording of the deed. In the second count of the complaint, the plaintiff claims a vendor’s lien in the event it is determined that the deed is valid.

Miami Beach Federal and Rosenman claim to be bona fide mortgagees without notice of any claim of plaintiff and further assert affirmative defenses of estoppel, laches, waiver, and plaintiff’s failure to offer to do equity. The affidavits and pleadings establish that Miami Beach Federal and Rosenman had no actual notice of any such claims of plaintiff.

Almost five months after the recording of the mortgages, plaintiff recorded an instrument entitled “Notice Of Vendor’s Lien”, which instrument described the same land as was described in the aforesaid deed and recited that a substantial sum of money for purchase price remained unpaid for which a vendor’s lien was claimed. It is apparent that this instrument could not be the basis of any constructive notice to Miami Beach Federal and Rosenman because of the delayed recording. Section 695.01, Florida Statutes. In addition to the effect of the delayed recording thereof, the said defendants assert that such instrument is not entitled to record since there is no lawful authority for the recording thereof, and therefore such instrument cannot impart constructive notice. This latter question need not be decided and is moot because of the delayed filing of such instrument.

On the face of the plat of Harvest Time Subdivision there appeared a short recital to the effect the plaintiff consents to the plat as the holder of a mortgage encumbering the property [131]*131covered by the subdivision. Such statement is signed by two officers of the plaintiff and there also appears the signatures of two witnesses and the seal of the plaintiff corporation. However, on the plat as recorded in the public records, a line is drawn through every word of such statement together with the entire signature of the plaintiff, the witnesses, and the signatures of the corporate officers, and the words “seal void” appear over the corporate seal. The plaintiff takes the position that the socalled mortgagee’s consent appearing on the plat, even though stricken, places the defendants on implied notice of all facts that would have been discovered by inquiry of the plaintiff from such plat notation. The defendants maintain that such is not the legal effect of the stricken plat notation. As hereinabove mentioned, the record in this cause establishes a lack of actual notice to Miami Beach Federal and Rosenman of the claims of plaintiff, and, as will be hereinafter more thoroughly discussed, the court determines that there was no constructive or implied notice of plaintiff’s claim.

The first two theories of plaintiff’s argument that the deed to Windsor was void, that is, lack of consideration and fraud, cannot be applied against a bona fide purchaser for value without notice. These principles were early established in Florida in the cases of Campbell v. Carruth, 32 Fla. 264, 13 So. 432 (1893) and Neal v. Gregory, 19 Fla. 356 (1882). These are fundamental principles of law but they are not the real issue in this case.

The primary controversy involves plaintiff’s assertion that the plaintiff’s deed to Windsor was void because Windsor was not a de jure or de facto corporation at the time of the execution, delivery and recording of such deed. Miami Beach Federal and Rosenman argue that the plaintiff is estopped to assert the nonexistence of the plaintiff’s grantee and any other facts in derogation of such deed. The legal doctrine of estoppel by deed is an important part of the law of conveyancing, and such principle is amply set forth in the court decisions of Florida and other states. This principle is summarized in 12 Fla. Jur., Estoppel and Waiver, §§9, 13 and 20. In the present case the deed from the plaintiff to Windsor is regular on its face and specifically recites that the property is conveyed to “Windsor Properties, Inc., 2701 S. W. 28th Terr., Miami, Fla., a corporation existing under the laws of the State of Florida, having its principal place of business in the County of Dade and State of Florida and lawfully authorized to transact business in the State of Florida, . . .”. In this deed the plaintiff affirmatively states that the grantee is [132]*132“a corporation existing under the laws of the State of Florida”. Thereafter, bona fide purchasers for value have relied upon such deed and materially altered and changed their position. This is a classic example of the application of the principle of estoppel by deed. The plaintiff’s attack is based upon the assertion that the deed is void. However, the possibility of a void deed has not prevented the application of the principle of estoppel. In Daniell v. Sherrill, 48 So. 2d 736 (1950), and Trustees of the Internal Improvement Fund v. LoBean, 127 So. 2d 98 (1961), the court specifically noted that the deeds in question may have been void deeds, but that the grantors were estopped to assert the invalidity thereof. The same principle is set forth in New York Life Ins. Co. v. Oats, 122 Fla. 540, 166 So. 269 (1935), Mexican Crude Rubber Co. v. Ackley, 101 Fla. 552, 134 So. 585 (1930), and Rutland v. Norris, 154 Fla. 894, 19 So. 2d 418 (1944).

The plaintiff cites Municipal Bond & Mortgage Corp. v. Bishop’s Harbor District, 182 So. 794 (1938), and argues that this case requires that the grantee be at least a de facto corporation in order to sustain the validity of the deed. In the Municipal Bond case the statute permitted a special taxing district to be established upon the pursuit of validation proceedings in the circuit court.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Chatlos v. McPherson
95 So. 2d 506 (Supreme Court of Florida, 1957)
Daniell v. Sherrill
48 So. 2d 736 (Supreme Court of Florida, 1950)
Diimmel v. Morse
218 P.2d 334 (Washington Supreme Court, 1950)
Trustees of Internal Improvement Fund v. Lobean
127 So. 2d 98 (Supreme Court of Florida, 1961)
Mexican Crude Rubber Co. v. Ackley
134 So. 585 (Supreme Court of Florida, 1931)
Reasoner v. Fisikelli
153 So. 98 (Supreme Court of Florida, 1934)
Rutland v. Norris
19 So. 2d 418 (Supreme Court of Florida, 1944)
New York Life Insurance v. Oates
166 So. 269 (Supreme Court of Florida, 1935)
Rambo v. Dickenson
110 So. 352 (Supreme Court of Florida, 1926)
Detrick v. Kitchens
1939 OK 55 (Supreme Court of Oklahoma, 1939)
Hawkes v. Hoffman
105 P. 156 (Washington Supreme Court, 1909)
Neal v. Gregory
19 Fla. 356 (Supreme Court of Florida, 1882)
Campbell ex rel. Estate of Campbell v. Carruth
32 Fla. 264 (Supreme Court of Florida, 1893)
Warner v. Watson
35 Fla. 402 (Supreme Court of Florida, 1895)
Feinberg v. Stearns
56 Fla. 279 (Supreme Court of Florida, 1908)
First Nat. Bank in Dalhart v. Flack
222 S.W.2d 455 (Court of Appeals of Texas, 1949)
Johnson v. Erlandson
105 N.W. 722 (North Dakota Supreme Court, 1905)

Cite This Page — Counsel Stack

Bluebook (online)
28 Fla. Supp. 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beth-w-corp-v-miami-beach-federal-savings-loan-assn-flacirct17bro-1966.