Opinion
No. 67-477.
April 23, 1968. Rehearing Denied May 14, 1968.
Appeal from the Circuit Court for Dade County, Thomas E. Lee, Jr., J.
Kelly, Black Black, Miami, for appellant.
Thomas C. Britton, County Atty., Joseph Nesbitt, Tallahassee, George E. Owen, Omaha, Neb., for appellees.
Before CHARLES CARROLL, C.J., and BARKDULL and SWANN, JJ.
Involved in this appeal is whether or not the holder of a note secured by a mortgage, which note and mortgage provided a penalty for prepayment is entitled to the prepayment penalty when the property encumbered by the mortgage is taken by eminent domain proceedings. The trial court held that the mortgagee was entitled to his prepayment penalty from the funds on deposit in the registry of the court, pursuant to an order of taking under § 74.051, Fla. Stat., F.S.A. We reverse.
The Supreme Court of Florida, in Shavers v. Duval County, Fla. 1954, 73 So.2d 684, held that where there was no right to prepayment a mortgagee was not entitled to receive an amount from the proceeds of a condemnation proceedings which would equal the interest for the term remaining on a note and mortgage after taking and distribution, holding that a mortgagee was only entitled to the return of its principal and accrued interest. If this be true as to unearned interest, it certainly should be true as to prepayment penalties. Therefore, we hold that all the mortgagee was entitled to in this situation was the return of its principal and interest accrued until the date of distribution.
The order under review is reversed, and the cause is remanded for further proceedings not inconsistent herewith.
Reversed and remanded with directions.