Smith v. Fleetwood Building Corp.

163 So. 293, 120 Fla. 481, 1935 Fla. LEXIS 1423

• Court: Supreme Court of Florida
• Decided: January 7, 1935
• Status: Published

Opinions

Per Curiam.

The appeal in this case is from an order appointing a Receiver and denying motion to dismiss the bill of complaint.

Bill of complaint was filed by Fleetwood Building Corporation for and on behalf of itself and all other bondholders and holders and owners of participating ownership certificates similarly situated. The bill sought the appointment of a Receiver pendente lite, the discharge of M. A. Smith, Liquidator-Trustee of the Trust Company of Florida, as Trustee for the particular property described in the bill of complaint, for an accounting and the appointment of a successor Trustee.

We glean from the record that a trust deed was originally executed by one J. Perry Stoltz and his wife, Nellie C. Stoltz, to G. L. Miller Bond & Mortgage Company to secure bonds in the sum of $60,000.00. The Trust Deed covered the property involved in this suit. G. L. Miller Bond & Mortgage Company had its ñamé changed to 1 Marion Mortgage .Company. Default occurred in payment of the indebtedness secured by the Trust Deed. Marion Mortgage Company instituted a foreclosure suit which was carried to final decree and the property sold, a conveyance being made to Trust Company of Florida as Trustee. Complainants in this suit became owners of ownership certificates issued by Trust Company of Florida in lieu of original bonds in the sum of $6,900.00. In November of 1931 the Comptroller of Florida took over the Trust Company of Florida for the purpose of liquidation and appointed one Therrell as Liquidator. M. A. Smith was later appointed ■ General Liquidator and succeeded Therrell and became Liquidator-Trustee of the trust property.

In May, 1934, Smith, as Liquidator-Trustee, filed a bill of complaint in the Circuit Court of Dade County, Florida,' to foreclose an alleged trustee’s lien against the property in the amount of $10,623.58, and filed lis pendens against the property.

Thereupon, the bill of complaint in this suit was filed, it .being alleged that Smith, as Liquidator-Trusteej by instituting the suit and proceedings to foreclose the alleged, Trustee’s lien, had placed himself in a position -antagonistic to the beneficiaries of the trust estate.

It is too well settled to require citation of authorities that where a Trustee places himself in a position antagonistic to the cestui que trust he should retire from the trusteeship. The record shows that the order complained of was made after hearing and, therefore, in this state Of the record it devolves upon the appellant to show that the Chancellor abused his judicial discretion in making that order.

It has not been made to appear that the Chancellor did not abuse his judicial discretion in this regard and, therefore, the order appealed from should be affirmed. It is so ordered.

Affirmed.

Davis, C. J., and Whitfield, Terrell and Buford, J. J., concur.'