Gorton v. Paine

Citations

• 18 Fla. 117

Syllabus

<p>1. After sale under foreclosure proceedings, a court of equity has power co-extensive with its jurisdiction over the subject-matter, to award orders directing a party in possession to surrender to the purchaser.</p> <p>2. As a general rule, such an order will follow in eases where the party in possession was a defendant to the suit. Where, however, the person in possession is a mere stranger, who entered into possession before the suit was begun, he cannot be dispossessed by an execution on the decree.</p> <p>3. Where the subject-matter of a suit arises primarily from the relations of first and second mortgagee, with reference to the mortgaged premises, the matter is one peculiarly the subject of equitable cognizance. If the second mortgagee in possession is á party to a foreclosure suit, and he claims under a tax title from the State obtained by him while he was the owner of the right and equity of the mortgagor, the purchaser under the foreclosure proceedings is not remitted to a court of law to recover possession of him.</p> <p>4. An answer to a rule to show cause why a writ of possession -should not be awarded against a defendant to a suit, should set up the facts constituting his defence in such manner that they may be understood by the other party who is to answer them, and by the court giving judgment. A second mortgagee who was a party to a foreclosure suit by the first mortgagee, answers to a rule to show cause why the purchaser should not be awarded possession as against him that he holds by a title derived from the State of Florida. This is not sufficiently certain, as it is possible that as the holder of one character of deed from the State he might hold by a paramount title which would put the purchaser to his action at law ; while if he is the holder of a tax title acquired while he was a second mortgagee, the court of equity has jurisdiction.</p>