Whiteside v. Sherman

122 So. 2d 799
CourtDistrict Court of Appeal of Florida
DecidedAugust 26, 1960
DocketNos. 1634, 1652
StatusPublished

This text of 122 So. 2d 799 (Whiteside v. Sherman) 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
Whiteside v. Sherman, 122 So. 2d 799 (Fla. Ct. App. 1960).

Opinion

ALLEN, Chief Judge.

Two separate appeals were taken from the foreclosure decree by separate defendants below. One appeal was by Thurman A. Whiteside, Trustee, and individually, and P. L. Watson, individually. The other appeal was by A. V. Abbott. The two cases were consolidated in this court. A cross-assignment was filed by the appellee Sherman in the Whiteside case, No. 1634.

[801]*801The appellee, Hilda Patrick Sherman, as plaintiff-mortgagee in the lower court, filed an amended complaint to foreclose her mortgage on a 99-year leasehold interest in the Dania Beach Hotel, against White-side, as trustee. The complaint alleged that in 19S0 a mortgage and note was executed by James T. Clark and his wife to Simco & Company in the sum of $33,635.76; that the mortgage encumbered the fee title to the property and improvements and furnishings in the hotel. The complaint then alleged that Simco assigned the mortgage to Hilda M. Patrick and thereafter, in the same year, James Clark and his wife and Hilda M. Patrick executed a modification agreement, and at the same time James Clark and his wife executed the new note of $33,635.76. On December 31, 1951, a corrective instrument was executed by Hilda M. Patrick and Clark and his wife.

The complaint further alleges that on June 1, 1953, Clark and his wife assigned a 99-year lease that they held on the property to Whiteside, as trustee; that on November 24, 1953, Morris Eisenberg and his wife executed a warranty deed to the property to Whiteside, as trustee, subject to the mortgage on the fee held by plaintiff; that on April 6, 1954, the plaintiff, Hilda Patrick, married Robert Sherman, and on December 20, 1954, Hilda Patrick Sherman was declared a free dealer. The complaint then alleges that Whiteside failed to make the $250 payments due on the mortgage on September 1, 1957, and on October 1, 1957, and therefore the plaintiff claimed the full amount due and payable and sought foreclosure of the mortgage. At this point the-complaint was amended so as to claim that plaintiff’s mortgage was secured only by the 99-year lease and not by the fee also.

Whiteside filed an answer denying all allegations of the complaint and raised the following affirmative defense:

1.That he purchased the tenant’s rights (the Clark’s) under the 99-year lease on June 3, 1953;

2. That he purchased the fee-simple estate from the Eisenbergs on November 24, 1953; and

3. That by purchasing the fee and the leasehold the two estates merged in him, and by reason of the merger, the 99-year lease ceased to exist and that plaintiff’s mortgage therefore became unsecured and that plaintiff’s only action was at law on the note against the original makers, the Clarks.

Whiteside then counterclaimed to recover from the plaintiff all of the money which he had paid to her under her mortgage, secured by the 99-year lease, from the time he acquired the lease up to the time of suit. He alleged that all 51 monthly payments of $250 each were made by mistake and he asked for a refund with interest.

The counterclaim further alleged that if the court found that the merger did not take place and if the court found that the plaintiff was entitled to foreclosure on the 99-year lease, then Whiteside claimed the monies paid by him to plaintiff on her mortgage, plus the sums which he should have paid himself as landlord from June, 1953, to November, 1957, plus the sums which he, as tenant, had paid to Connecticut Mutual Life Insurance Company on the first mortgage (the tenant was required under the 99-year lease to make payments on the mortgage on the fee) should be declared a lien against the 99-year lease of greater dignity than the plaintiff’s mortgage lien and also prayed that this lien for all of these sums be foreclosed.

The next procedural development was that both the plaintiff and Whiteside moved for a summary decree. The court entered a partial summary decree of foreclosure on May 12, 1958, holding that the plaintiff’s mortgage constituted a lien on the leasehold estate and adjudicated that there was due and owing to the plaintiff the sum of $25, 988.67 and that this sum would be satisfied out of the sale of the leasehold which would be ordered by a subsequent decree. The court also found Whiteside’s defense as to merger to be without merit and stated [802]*802that the cause would proceed on the counterclaim. No appeal was taken from this partial summary decree.

On December 19, 1958, Whiteside assigned his interest in the counterclaim for rent as trustee for A. V. Abbott, the equitable owner of the fee, to A. V. Abbott. Then on December 22, 1958, A. V. Abbott filed her amended counterclaim by virtue of the above assignment in which she sought a judgment against Whiteside and P. L. Watson (Watson apparently owned some interest in the lease along with Whiteside) for the rent payments due the fee owner under the lease and asked that a lien for these rent payments be declared superior to the mortgage held by plaintiff on the leasehold estate.

' The plaintiff answered this counterclaim, pleading no knowledge of the allegations therein and asked that it be dismissed. The counter-defendant, White-side, answered admitting the assignment but stated that the status of the counterclaim for a superior lien would have to be determined by the court.

On July 15, 1959, the court entered an order denying plaintiff’s motion to dismiss the counterclaim but stated that any defenses that plaintiff had against White-side would be equally applicable against A. V. Abbott.

On August 9, 1959, Abbott moved for summary judgment on the counterclaim.

On September 11, 1959, the court entered an order on all pending motions. Abbott was ordered to appear on October 9, 1959, with all necessary documents and writings for the purpose of having her deposition taken; Whiteside was similarly ordered to appear on the same date; Watson was also ordered to appear; and final hearing was set for October 15, 1959.

The plaintiff moved to amend her answer to the amended counterclaim so as to set up the defenses of equitable estoppel and laches on the ground that Whiteside had never informed her that he had purchased the leasehold estate. The court denied this motion on October 17, 1959, but stated that if the evidence at final hearing warrants it, the plaintiff would be permitted to orally amend to set up these defenses.

The cause came on for final hearing on October 15 and 16, 1959, at which time the following facts were adduced:

The plaintiff testified that she did not know nor had she ever talked with A. V. Abbott; that she did not know Watson nor had she ever talked with him; that she had discussed with Whiteside the monthly payments; and that she had never been informed that the lease had been assigned or that any payments should have been made to Abbott.

Abbott testified that she had not met Whiteside until this litigation commenced; and that her only contact with the property was through her business manager, P. L. Watson, who had managed her affairs for 25 years.

In regard to no one informing the plaintiff, who was holding the mortgage on the 99-year lease, concerning the change in ownership of the lease and the fee, the court allowed, over objection of Abbott’s attorney, plaintiff’s attorney to set up es-toppel or laches against the claim of rent by Abbott. The plaintiff then testified that had she known that the rent was in arrears, she would have seen an attorney to take care of the matter.

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Bluebook (online)
122 So. 2d 799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whiteside-v-sherman-fladistctapp-1960.