Georgia Holding & Investment Co. v. Citizens Bank

196 So. 808, 145 Fla. 540, 1940 Fla. LEXIS 982

• Court: Supreme Court of Florida
• Decided: July 23, 1940
• Status: Published

Opinions

Chapman, J.

This case is before the Court on an appeal from a final decree of foreclosure. The mortgage foreclosed in the lower court was for the sum of $600.00, evidenced by twenty-four notes, maturing one each month beginning July 5, 1938. The first note maturing was promptly paid when due and on August 18, 1938, $75.00 was paid and a release oí a portion of the land described in the mortgage was delivered by the mortgagee and the $75.00 was applied on the three notes- in the sum of $25.00 each maturing April 5, May 5, and June 5; 1940. The interest was paid on the $600.00 indebtedness and the notes maturing August 5, September 5, October 5 and November 5, 1938, were paid. The defendant below failed to pay the notes maturing on December 5, 1938, and January 5, 1939, and under the provisions of the acceleration clause of the mortgage, the mortgagee had the right to declare the entire indebtedness due and payable and exercised the option, and the bill to foreclose was filed on January 19, 1939.

An answer was filed denying the material allegations of the bill of complaint, testimony was taken, and on final hearing the chancellor décreed that the equities of the cause were with the plaintiff below and decreed that the lands be sold to pay the indebtedness. From this final decree an appeal has been perfected to this Court.

The question involved for the chancellor to decide was whether or not the defendant below had defaulted in the payment of the monthly notes so as to exercise the provisions of the mortgage authorizing the plaintiff to declare the entire indebtedness due and payable. The lower court’ heard the evidence upon this particular point and from the evidence adduced decreed that the defendant below had failed or omitted to pay the notes maturing in December, 1938, and January, 1939, and because of the failure to pay these two notes the mortgagee had a right to exercise the option of declaring the entire indebtedness due and payable.

The question before us is whether or not there is sufficient evidence to sustain the chancellor in decreeing that the. notes maturing in December, 1938, and in January, 1939, were not paid by the mortgagors. We find ample testimony in the record to support the conclusions of the chancellor as expressed in the final decree appealed from.

- We have carefully studied the record, read the briefs filed by counsel for the respective parties and the authorities cited therein have been examined, and we have reached the conclusion that no errors appear in the record. The decree appealed from is hereby affirmed.

Whitfield, J., concurs. Buford, J., concurs specially. Brown and Thomas, J. J., dissent. Chief Justice Terrell not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.