ELI FRIEDMAN, A/K/A ELIAS FRIEDMAN, AND RUTH FRIEDMAN, HIS WIFE, APPELLANTS,
v.
JOE POHNL, APPELLEE
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Eli and Ruth Friedman challenged an interlocutory order finding that a mortgage held by Joe Pohnl was superior to their mortgages. The court affirmed, holding that no merger of the mortgage and property ownership occurred that would have extinguished the plaintiff's mortgage rights.
The court held that while merger ordinarily occurs when a mortgage and the equity of redemption unite in the same person, this is not always the case. Whether merger occurs depends on the intent of the person acquiring both interests, determined by their declarations, interest, or attending circumstances. The lower court correctly found no merger occurred in this case.
“While a merger will normally occur when a mortgage on property and the equity of redemption in such property unite in the same person, such is not always the case.”
Establishes that merger is not automatic and may be avoided under certain circumstances
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Join FLexlaw to unlock all legal intelligenceThe Friedmans owned property encumbered by mortgages. At some point, one party acquired both the property and mortgage interests, raising the question…
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Appellants seek reversal of an interlocutory order of the circuit court which, among other things, found that plaintiff’s mortgage was superior to the mortgages of the defendants-appellants.
The main contention for reversal is that the mortgage presently held by plaintiff was extinguished prior to the assignment of such mortgage to him by reason of the fact that one previously owning the encumbered property also acquired the mortgage interests. In other words, it is appellants’ contention that there occurred a merger of the ownership of the property with the debt (the mortgage now held by the plaintiff) thereby extinguishing the debt and precluding any future right to assign the mortgage after it had been assigned to the mortgagor and owner of the property.
We find that we must reject this contention and affirm the lower court. While a merger will normally occur when a mortgage on property and the equity of redemption in such property unite in the same person, such is not always the case.
The Supreme Court of Florida, in Jackson v. Relf, 26 Fla. 465, 8 So. 184, stated, at page 185:
“When a mortgage on lands and the equity of redemption in the same lands have become united in the same person, ordinarily the mortgage is merged,— in other words, ceases to be an incum-brance, — and the owner will hold the lands with an unincumbered title, if there be no other mortgage or lien. But this is not always and necessarily the result. Whether it is or not, depends upon the intention of the person in whom the interests are united, and that intention is to be determined by his declarations at the time, or, in the absence of these, by his interest, as shown in the condition of things then existing, or by the attending circumstances. When there is no evidence of the intention of the owner in uniting the legal and equitable estates in himself, it is proper to presume that he intended that effect which is the most beneficial to him.”
See Walter J. Dolan Properties v. Vonnegut, 133 Fla. 854, 184 So. 757.
Applying the foregoing rule to the instant case, we hold that the court below was correct in finding that no merger occurred.
Appellants’ other assignments of error have been carefully reviewed and found to be without merit. It therefore follows that the interlocutory order appealed is affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gourley v. Kermit Wollam and Lydia L. Wollam, 348 So. 2d 1218 (Fla. 4th DCA 1977)…the two estates in himself is determinative of whether a merger results or not. Jackson v. Relf, 26 Fla. 465, 8 So. 184 (1890); Lawton v. McIlvaine, 113 Fla. 743, 152 So. 179 (1934); Fay v. Lougee, 113 Fla. 784, 153 So. 91 (1934); Friedman v. Pohnl, 143 So. 2d 690 (Fla. 3d DCA 1962); 22 Fla.Jur., Mortgages, § 535. As the Supreme Court of Florida stated in Relf: “When a mortgage on lands and the equity of redemption in the same lands have become united in the same person, ordinarily the mortgage is merged, —…
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Friedman v. Pohnl, 155 So. 2d 152 (Fla. 1963)…Certiorari discharged without opinion. 143 So. 2d 690.…
Authorities Cited
- Jackson v. Relf, 26 Fla. 465 (Fla. 1890)
- Walter J. Dolan Props., Inc. v. Vonnegut, 133 Fla. 854 (Fla. 1938)