Wicker, Et Vir. v. Trammell , 123 Fla. 686 ( 1936 )

This case is before us on motion to quash alternative writ of mandamus in a case of original jurisdiction.

The alternative writ required the Circuit Judge, Hon. W.W. Tammell, to make and enter necessary and appropriate orders setting aside, canceling and rescinding a certain order and a certain deed in foreclosure proceeedings and in default thereof to show cause why he should not comply with such writ.

The order sought to be canceled was entered by the Circuit Judge and filed and recorded in the office of the Clerk of the Circuit Court on March 21, 1936, in the following language, to-wit:

"THIS CAUSE coming on this day to be heard upon petition for the sale of the following described property: Lots 20 and 21 of Block 15, Coral Gables, Craft Section, in the City of Coral Gables, County of Dade, State of Florida; filed herein by M.A. Smith, as Liquidator of the Trust Company of Florida, as Trustee; and it appearing to the Court that said property has been foreclosed against and the interest of the Petitioner, M.A. Smith, as Liquidator of the Trust Company of Florida, as Trustee, as well as the bondholders and beneficiaries lost and gone by reason of a master's sale of said property; and it further appearing to said court that there is now due the Trust Company of Florida by reason of advances made and disbursements and expenses incurred in the administration of said property, the sum of $1,077.03, as is shown by a detailed statement of said advances attached to and made a part of said petition herein on file; and it further appearing that said petitioner has been offered $250.00 for a quitclaim deed in and to said property, and the court being fully advised in the premises, it is, therefore, upon consideration,

"ORDERED, ADJUDGED AND DECREED that said petition of M.A. Smith, as Liquidator of the Trust Company of Florida, as Trustee, be and the same is hereby granted, and said M.A. Smith, as Liquidator of the Trust Company of Florida, as Trustee, be and he is hereby authorized, instructed and directed to make, execute and deliver a trustee's quitclaim deed in and to the following described property:

"Lots 20 and 21 of Block 15, Coral Gables, Craft Section, in the City of Coral Gables, County of Dade, State of Florida; to one Rollo E. Karket, or his nominee, for the cash consideration of $250.00 to be collected by said petitioner upon delivery of said quitclaim deed; and it is further

"ORDERED, ADJUDGED AND DECREED that said M.A. Smith, as Liquidator of the Trust Company of Florida, as Trustee, be and he is hereby authorized, empowered, permitted and directed to apply said consideration of $250.00 against the said advances due the said Trust Company of Florida, and after said application is made, to endorse upon the said records of the Trust Company of Florida a notation showing such payment or receipt of the said sum of $250.00.

"DONE, ORDERED AND DECREED in Chambers in Miami, Dade County, Florida, this 21st day of March, A.D. 1935."

The trustee's deed was dated March 16th, 1935, and filed for record on March 22, 1935. Motion to set aside the deed and appoint a successor-trustee was filed before the Circuit Judge apparently on December 18th, 1935. Smith, as Liquidator, filed answer to the petition to vacate the order of the Circuit Judge and set aside the trustee's deed in which he offered to return the consideration paid for the deed and consented to the appointment of a successor-trustee.

The allegations of the motion to set aside the deed and appoint a successor-trustee appear sufficient to constitute a basis for the court to make inquiry as to any fraud in connection with the subject matter participated in by the Liquidator-Trustee.

It appears that parties at interest, to-wit: M.A. Smith, as Liquidator of the Trust Company of Florida, and Mrs. George Magnus, wife of George Magnus, are not made parties to this proceeding.

Whether or not the order directed M.A. Smith, as Liquidator, authorizing him to make and execute a deed and the deed made pursuant to that order should be set aside and canceled because of fraud perpetrated upon the court in connection therewith, are questions which the Circuit Court has jurisdiction to determine. If the Circuit Court should in the exercise of jurisdiction in this regard commit error, such error may be reviewed and corrected on appeal. It is not made to appear that the court was without jurisdiction of the subject matter or without jurisdiction to make an order authorizing a liquidator-trustee to make and execute a deed to property claimed to be assets in the hands of the liquidator-trustee.

For these reasons, the alternative writ should be quashed.

It is so ordered.

ELLIS, P.J., and TERRELL and BUFORD, J.J., concur.

WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur in the opinion and judgment.