DONALD H. REED AND MARY L. REED, HIS WIFE, APPELLANTS,
v.
CASSIE DYAL, A/K/A MRS. L. W. DYAL, APPELLEE
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Trial court correctly imposed an equitable lien and foreclosed on appellants' property for a $15,000 loan advanced for home repairs, though the court erred in awarding attorney's fees.
An equitable lien may be impressed and foreclosed on property when money is advanced for repairs on condition of a mortgage, even without specific repayment terms, if the borrower fails to execute the mortgage or repay the funds.
[1] An equitable lien may be impressed on real property and foreclosed when a lender advances funds conditioned upon the borrower executing a mortgage, even absent specific r…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Since the money was advanced upon condition that appellants would execute and deliver a mortgage on the property and appellants failed to do so, and failed to make repayment of part or all of the sums advanced, they cannot now assert as a defense any lack of specificity in the transaction.”
Court's reasoning that appellants cannot use lack of specific terms as a defense when they breached the fundamental condition of executing a mortgage.
Appellee advanced $15,000 to appellants for home repairs on appellants' real property, with the understanding that appellants would execute a first mo…
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PER CURIAM.
We hold that the trial judge correctly determined that appellants are indebted to appellee for the sum of $15,000.00, together with interest and court costs, and correctly entered a final judgment impressing an equitable lien or mortgage on appellants’ property, and foreclosing the same. It is immaterial that there were no specific “terms” nor provision for “acceleration” of the entire principle amount due. It is undisputed that appellee advanced the money to appellants, for the making of repairs on a home on appellants’ real property, payment to be secured by a first mortgage on the property in favor of appellee, with terms of repayment and interest rate to be agreed upon. Since the money was advanced upon condition that appellants would execute and deliver a mortgage on the property and appellants failed to do so, and failed to make repayment of part or all of the sums advanced, they cannot now assert as a defense any lack of specificity in the transaction, and they are not equitably entitled to have the court make an agreement for them.
We reverse that portion of the final judgment of foreclosure awarding attorney’s fees to appellee’s attorney, because we find no basis in the record for award of such fees. Except as to the award of attorney’s fees, the final judgment of foreclosure is affirmed.
BOOTH, LARRY G. SMITH and THOMPSON, JJ„ concur.