Shores v. First Florida Resource Corp.

District Court of Appeal of Florida

Shores v. First Florida Resource Corp.

267 So. 2d 696, 1972 Fla. App. LEXIS 6192

District Court of Appeal of Florida·Decided October 11, 1972·No. No. 72-67·Published·Cited by 2 cases

Opinion

MANN, Judge.

Properly characterized, this is an action for reestablishment of a lost note and mortgage. The evidence is clear that the mortgage was executed, that the appellants acquired the property subject to it and agreed to assume it. They made some payments, but it is now in default to the extent determined by the trial court. Thus the findings, as far as they go, are correct and are affirmed. However, the evidence that the note and mortgage have not been assigned is inadequate, and the procedures outlined by the governing statute¹ have not been followed. Appellants are entitled to assurance that they will not later be sued by a holder of these instruments. The corporation had admittedly transferred some mortgages to a bank and some to stockholders whose interest was being acquired. All this record shows is the bare affirmation of two corporate officers that this one was not assigned. The president testified that it was necessary to subpoena the corporation’s records from its former bookkeeper, but was forbidden by his counsel to explain why this was necessary. If there are parties having any claim to these instruments they should be brought into the action and the matter determined. The [697] instruments should then be reestablished, recorded and an appropriate judgment entered.

Affirmed in part, reversed in part and remanded.

LILES, Acting C. J., and McNULTY, J., concur.

Footnotes

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

MANN, Judge.

Properly characterized, this is an action for reestablishment of a lost note and mortgage. The evidence is clear that the mortgage was executed, that the appellants acquired the property subject to it and agreed to assume it. They made some payments, but it is now in default to the extent determined by the trial court. Thus the findings, as far as they go, are correct and are affirmed. However, the evidence that the note and mortgage have not been assigned is inadequate, and the procedures outlined by the governing statute¹ have not been followed. Appellants are entitled to assurance that they will not later be sued by a holder of these instruments. The corporation had admittedly transferred some mortgages to a bank and some to stockholders whose interest was being acquired. All this record shows is the bare affirmation of two corporate officers that this one was not assigned. The president testified that it was necessary to subpoena the corporation’s records from its former bookkeeper, but was forbidden by his counsel to explain why this was necessary. If there are parties having any claim to these instruments they should be brought into the action and the matter determined. The [697] instruments should then be reestablished, recorded and an appropriate judgment entered.

Affirmed in part, reversed in part and remanded.

LILES, Acting C. J., and McNULTY, J., concur.

Footnotes

Shores v. First Florida Resource Corp., 267 So. 2d 696, 1972 Fla. App. LEXIS 6192 (Fla. Ct. App. 1972).

Pincite

267 So. 2d 696 (Shores v. First Florida Resource Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Footnotes

Related