S. E. DURRANCE
v.
FIRST NATIONAL BANK & TRUST CO. OF ORLANDO
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The Florida Supreme Court reversed a mortgage foreclosure decree because the lower court improperly foreclosed on renewal notes that were executed after the mortgage was recorded and not expressly secured by the original mortgage. The court held that a mortgage securing a specific promissory note cannot be extended to cover subsequently executed renewal notes unless explicitly authorized.
The mortgage can only be foreclosed for the original promissory note of February 15, 1928. Renewal notes executed after the mortgage was recorded are not secured by the mortgage unless the mortgage expressly authorized extension of the lien to cover such renewal obligations or a supplemental lien was properly created.
“There was no authority shown for the foreclosure of the mortgage for any other debt than that presented by the original promissory note of February 15, 1928.”
Establishes that the mortgage's lien is limited to the specific original debt and cannot extend to subsequently executed renewal notes.
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Join FLexlaw to unlock all legal intelligenceDurrance executed a mortgage to First National Bank to secure a promissory note dated February 15, 1928, for $1,000 with 8% interest. The original not…
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Durrance gave a mortgage to the First National Bank of Orlando to secure a note made a part thereof as follows:
*527“1000.00 November 15, 1928.
“On or before the 15th day of February, 1928, I promise to pay to First National Bank in Orlando, or order One Thousand dollars with interest at the rate of eight per cent, per annum from date until paid. Value received.
“S. E. Durrance (L. S.)”
The original note was extended and renewed by the giving of additional notes from time to time. The additional notes bore interest after maturity at the rate of ten per cent until paid, and provided for recovery of a reasonable attorney’s fee if placed in the hands of an attorney after maturity. The Court below foreclosed the mortgage on the basis of the debt presented by the renewal note dated February 13, 1929. This renewal note was not given until after the mortgage was recorded. The decree also provided for future interest upon the principal sum at the rate of ten per cent, per annum until paid. An assignment of error is to the effect that the Chancellor erred in entering the final decree of May 23, 1932.
In common law causes an assignment of error that “the court erred in rendering judgment for the plaintiff in said cause” is too general to be considered by this Court. Stearns & Culver Lbr. Co. v. Adams, 55 Fla. 401, 45 Sou. Rep. 847. But on an appeal in chancery an assignment of error that “the court erred in the entry of its final decree” is sufficient to call for review of every error that may appear in a final decree. American Express Co. v. Cochrane, 103 Fla. 426, 137 Sou. Rep. 696.
There was no authority shown for the foreclosure of the mortgage for any other debt than that presented by the original promissory note of February 15, 1928. This note was specifically made a part of the mortgage at the time it was executed. While the renewal notes were competent evidence *528to show that the original note was still unpaid yet insofar as the renewal notes provided for an additional indebtedness, indemnity or liability, they were not secured by the mortgage being foreclosed. This is because they were subsequently executed and delivered, and there was nothing in the mortgage authorizing the extension of its lien to any greater or different indebtedness than that represented by the original note of February 15, 1928. Nor was it made to appear, by any appropriate instrument or binding agreement, that any supplemental lien capable of being tacked on to the original mortgage lien was ever brought into existence as to the renewal notes, or either of them.
So the final decree was in error insofar as' it foreclosed the mortgage for a debt other than the note of February 15, 1928, and it is accordingly reversed with leave to complainant to make appropriate amendments and have a decree not inconsistent with this opinion:
Reversed for appropriate proceedings.
Ellis and Terrell, J. J., concur.
Whitfield, P. J., and Brown and Buford, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mun. Court IN & FOR the City OF Coral Gables v. Giblin, 126 So. 2d 285 (Fla. 3d DCA 1961)…feature of the trial.” 3.5, subd. c, F.A.R., 31 F.S.A. See Fawcett v. Weaver, 121 Fla. 245, 163 So. 561; Miami Investors Syndicate v. Johnnie & Mack, Inc., Fla.App.1958, 104 So. 2d 617. Cf. Durrance v. First National Bank & Trust Company of Orlando, 116 Fla. 526, 156 So. 526. The motion to dismiss is granted and this appeal is dismissed. HORTON, C. J., and PEARSON and CARROLL, CHAS., JJ., concur.…
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Hornsby v. Tingle, 134 So. 2d 540 (Fla. 1st DCA 1961)…s held that an assignment of error charging “that the court erred in its entry of final decree” was sufficient to call for review of every error that may appear in a final decree in chancery. Durrance v. First Nat. Bank & Trust Co. of Orlando, 1934, 116 Fla. 526, 156 So. 526, 531; American Express Co. v. Cochrane, 1931, 103 Fla. 426, 137 So. 696, 698. That principle was modified, however, by the adoption of Florida Appellate Rule 3.5, subd. c and its pre-course, Supreme Court Rule 32, and by the decisions i…
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Barnett Bank of S. Fla., N.A. v. Weitzner (In Re Kavolchyck), 164 B.R. 1018 (S.D. Fla. 1994)…e Modification Agreement and the Renewals of Conditional Assignment of Rents, Profits and Leases, the security of the Mortgage relating to the 1986 loan to cover the second loan in 1990. See Durrance v. First Nat’l Bank & Trust Co. of Orlando, 116 Fla. 526, 156 So. 526, 527 (1934); 37 Fla. Jur.2d, Mortgages, § 40 (parties to a mortgage may, by a written agreement, extend the security of the mortgage to cover an additional indebtedness). The Goldmans’ 1990 loan therefore was secured and duly…
Authorities Cited
- The Stearns & Culver Lumber Co. v. Adams, 55 Fla. 401 (Fla. 1908)
- Am. Express Co. v. Cochrane, 103 Fla. 426 (Fla. 1931)
- Fisher v. Town of Milton, 103 Fla. 524 (Fla. 1931)