Peninsular Naval Stores Co. v. Cox

Citations

• 57 Fla. 505

Syllabus

<p>1. When a mortgage foreclosure suit is pending to foreclose a mortgage on lands which are subject to the lien of a judgment entered subsequently to the execution and recordation of the mortgage and where said lands are levied upon under said execution issued upon such judgment and advertised for sale, and where before such sale a lis pendens notice of such mortgage foreclosure was filed and recorded, under the lis pendens notice all persons purchasing said lands at said execution sale, or of said judgment, upon which the execution issued, buy the lands subject to the rights of the mortgagee in the foreclosure proceedings, and such a purchaser has no right to be made a party defendant upon his own petition, in the foreclosure suit; nor has the purchaser of such judgment as is referred to, subsequent to the filing of the Us pendens notice, the right t© be substituted as a party defendant in the litigation in lieu of the judgment creditor especially when it does not appear that either the complainant in the mortgage foreclosure suit, or the judgment creditor defendant in said suit has consented to such substitution.</p> <p>2. To entitle a party to file a bill in equity to remove or prevent a cloud upon the title to real estate, he must be the owner of either the legal or equitable title to said property, and under our statute (Sec. 2495 Gen. Stats, of 1906) a mortgage is neither.</p> <p>3. Where an order has been improperly made substituting an im proper party defendant in a mortgage foreclosure suit for a proper party defendant, which order is not void, upon the reversal of said order it is proper, in the interest of justice, to allow the proper party defendant a reasonable opportunity to plead to, or answer the bill.</p>