Miller v. Commercial Standard Insurance Co.

District Court of Appeal of Florida

Miller v. Commercial Standard Insurance Co.

248 So. 2d 675, 1971 Fla. App. LEXIS 6569

CourtDistrict Court of Appeal of Florida

DecidedMay 28, 1971

DocketNo. 70-541

StatusPublished

Cited by4 cases

This text of 248 So. 2d 675 (Miller v. Commercial Standard Insurance Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Commercial Standard Insurance Co., 248 So. 2d 675, 1971 Fla. App. LEXIS 6569 (Fla. Ct. App. 1971).

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Opinion

MANN, Judge.

Plaintiffs owned a mortgage on Alachua County land lying North of a certain point of beginning, given by mortgagors who held a deed to the same parcel but whose grantors owned property South of that point of beginning. The complaint alleges that no payments have been made since 1965, the parcel South has since been encumbered and their mortgage is uncollecti-ble. The defendant title insurance company admitted that it had erred but alleged that the plaintiffs had not proved damages, [676]*676since no action had been taken to enforce the mortgage, or even to reform it. Defendant’s motion for judgment on the pleadings was granted, and the final judgment determines that the title insurance company is liable on its obligation, fixes damages at zero and states that “the parties shall go forth henceforth without day.”

The title insurance contract is not a continuing obligation to purchase a mortgage which goes sour, as plaintiffs seem to think, but rather to defend the title insured against a claim of its invalidity. The option to pay the owners of the mortgage and succeed to their interest is the insurer’s. Clearly the plaintiffs should have brought an action' in Alachua County, whereupon the title insurance company would be obligated to support their mortgage against claims of invalidity on account of title.

In an early stage of this case, the trial judge granted summary judgment on liability and directed plaintiffs to allege their damages with particularity. They did not, and could not, but persisted in their attempt to bypass the essential Alachua County proceedings. Whether in those proceedings the plaintiffs should attempt to reform the mortgage or attempt to foreclose on the misdescribed land is a question we need not determine.

As a declaration of defendant’s liability on the policy, the judgment appealed from is correct, if useless. The contractual obligation set forth in the margin¹ continues and may be sued on in the correct forum.

The final judgment should have declared the insurer’s liability on the policy but dismissed the claim for damages without prejudice, and is accordingly affirmed in part and reversed in part and remanded.

HOBSON, Acting C. J., and Mc-NULTY, J., concur.

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MANN, Judge.

Plaintiffs owned a mortgage on Alachua County land lying North of a certain point of beginning, given by mortgagors who held a deed to the same parcel but whose grantors owned property South of that point of beginning. The complaint alleges that no payments have been made since 1965, the parcel South has since been encumbered and their mortgage is uncollecti-ble. The defendant title insurance company admitted that it had erred but alleged that the plaintiffs had not proved damages, [676]*676since no action had been taken to enforce the mortgage, or even to reform it. Defendant’s motion for judgment on the pleadings was granted, and the final judgment determines that the title insurance company is liable on its obligation, fixes damages at zero and states that “the parties shall go forth henceforth without day.”

The title insurance contract is not a continuing obligation to purchase a mortgage which goes sour, as plaintiffs seem to think, but rather to defend the title insured against a claim of its invalidity. The option to pay the owners of the mortgage and succeed to their interest is the insurer’s. Clearly the plaintiffs should have brought an action' in Alachua County, whereupon the title insurance company would be obligated to support their mortgage against claims of invalidity on account of title.

In an early stage of this case, the trial judge granted summary judgment on liability and directed plaintiffs to allege their damages with particularity. They did not, and could not, but persisted in their attempt to bypass the essential Alachua County proceedings. Whether in those proceedings the plaintiffs should attempt to reform the mortgage or attempt to foreclose on the misdescribed land is a question we need not determine.

As a declaration of defendant’s liability on the policy, the judgment appealed from is correct, if useless. The contractual obligation set forth in the margin¹ continues and may be sued on in the correct forum.

The final judgment should have declared the insurer’s liability on the policy but dismissed the claim for damages without prejudice, and is accordingly affirmed in part and reversed in part and remanded.

HOBSON, Acting C. J., and Mc-NULTY, J., concur.

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Bluebook (online)

248 So. 2d 675, 1971 Fla. App. LEXIS 6569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-commercial-standard-insurance-co-fladistctapp-1971.

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