Jacksonville Loan & Insurance v. National Mercantile Realty & Improvement Co. , 77 Fla. 825 ( 1919 )

Bullock, Circuit Judge.

— Complainant below was the purchaser at foreclosure sale of the mortgaged property described' in two mortgages. The bill alleges that after the making and record of the mortgages that one John S. Flanagan purchased the mortgaged premises, subject to, and agreed to pay, said mortgages. Thereafter defendant purchased from Flanagan the mortgaged premises subject to and “assumed and agreed to pay” said two mortgages. A final decree of foreclosure and sale was had at which appellant purchased the mortgaged property. The special master made a report of the sale, and the Circuit Judge, on the 15th day of March, 1918, made an order wherein he said: “It is therefore ordered, adjudged and decreed that the sale as made by said special master be, and the same is.hereby confirmed; that this cause is referred to the said special master of this court to take testimony and ascertain and report with all diligence the reasonable value of said mortgaged property at the time ■of the sale thereof by him. That so much of said motion as pertains to a deficiency decree be postponed until the filing of the said master’s report.” From this order appellant, complainant below, prosecuted its appeal to this court and assigned as error: (1st) The “refusing to enter a deficiency decree against the defendant;” (2nd) “Referring this cause to a special master to take testimony and ascertain and report the value of the said mortgaged property at the time of the sale thereof;” and (3rd) “Refusing the application of the complainant for a deficiency decree in this cause.”

There is no order denying the application for a deficiency. The order appealed from simply postponed the application.

In the case of Etter v. State Bank of Florida, 76 Fla. 203, 79 South. Rep. 724, decided August 9th, 191.8, this court held that “as between parties to the siut the sum for which the mortgaged premises were sold must, so long as the sale stands, be taken as the conclusive test of their value.”

The price bid at the foreclosure sale, especially when such sale is duly confirmed by the judge, is, as between the parties, the conclusive test of the value of the property sold. If the judge is of the opinion that the amount bid at the sale was inadequate, and inequitably less than the real value of the property, he should not confirm such sale, but should order a resale of the property. That feature of the decree referring the cause to a master to take testimony as to the real value of the property sold is er-re neous, and should be reversed.

Per Curiam.

— The record in- this cause having been considered by the court, and the foregoing opinion prepared under Chapter ——Acts of 1919, adopted by the couit as its opinion, it is considered, ordered and adjudged by the Court that the decree herein appealed from in so far as it refers the cause to a master to take testimony and the value of the poperty sold, be and the same is hereby reversed.

Browne, C. J., and Taylor, Whitfield, Ellis and West, J. J., concur.