Opinion
No. 21782.
May 22, 1951.
Appeal from the Circuit Court for Dade County, William A. Herin, J.
Roland J. Lavelle, Miami, for appellant.
John R. Blanton and Hendricks Hendricks, all of Miami, for appellee.
The appellee was successful in her suit to quiet title to two improved contiguous lots, on one of which she lived.
She acquired the parcels by separate deeds in 1920 and sold them to different persons in 1925, receiving from the grantees purchase money mortgages. In the same year, one of the lots, by successive conveyances, came into the hands of D and M. Realty Company, a copartnership, and the other into the hands of one Beaton. In 1948 the partners and Beaton executed to appellant quitclaim deeds to their respective lots, subject in each case to the original purchase money mortgage. Meanwhile, in the intervening twenty-three years, much had happened with respect to the property, in which the appellant and its grantors seem to have had no part. The 1926 hurricane damaged the houses, and appellee moved to one of them from her then home, and proceeded to make repairs. She seems to have occupied the places alternately for many years, and about 1942 to have settled on one lot, where she still lives, renting the other to various tenants.
In 1927, after some negotiation with the grantee Beaton, the appellee received from him a quitclaim deed which was intended by both to accomplish cancellation of the outstanding mortgage for a part of the cost of the property. This was the testimony of Beaton and the construction of the master, which the chancellor confirmed. One of the partners likewise executed a quitclaim deed to appellee to effect cancellation of the debt for a portion of the cost of the property conveyed to the partnership. This, too, was done soon after the devastating storm of 1926. Neither quitclaim deed to appellee was recorded or produced, nor has either of the original mortgages ever been satisfied of record.
There is ample evidence that the appellee has exercised dominion over the property ever since she moved to it right after the storm and the execution of the two deeds to her. She has lived in one house or the other and has rented to tenants the one not occupied by her from time to time. Besides the repair of damage from the storm, she has maintained the property in a condition corresponding with other property in the neighborhood. She has kept the houses insured and has paid taxes on the property since she received the quitclaim deeds, including taxes for the years 1948 and 1949.
Since the appellant got its quitclaim deeds it has exerted no claim to the property or the income, and has not challenged the appellee's possession. It was knowledge of these deeds that motivated the appellee in bringing the instant suit.
We agree with the chancellor that the dominion exercised by the appellee amounted to adverse possession. But, contends the appellant, the court erred in holding that the appellee's possession of both lots was adverse where she actually possessed only one. The fallacy of this position is plain. It is not necessary to reside upon property to claim it adversely. The circumstances we have related show such control over both parcels as to constitute adverse possession of both, even though she lived first on one and then on the other, for at all times she seems to have maintained possession either through herself or her tenants. We are convinced, too, that the properties, considering their nature and location, St. Petersburg v. Meloche, 92 Fla. 770, 110 So. 341, may be said to have been "usually * * * improved" to meet the requirements of the statute. Sections 95.17 and 95.19, Florida Statutes, 1949, and F.S.A.; Doyle v. Wade, 23 Fla. 90, 1 So. 516.
Appellant's remaining challenge presents the question whether a mortgagee may bring suit to quiet title. True, the appellee was a mortgagee in 1925, but she could not be accurately considered to have had that status twenty-three years later. The question is not resolved by simply saying that a mortgagee cannot maintain a suit to remove or prevent a cloud on title and citing to support the statement Peninsular Naval Stores Co. v. Cox, 57 Fla. 505, 49 So. 191. The lots in question were surrendered to the mortgagee in payment of the debt, and not to the date of this suit has anything been done by her grantees or any of their successors to interrupt or even question the possession she then assumed. Hurlburt v. Chrisman, 100 Or. 188, 197 P. 261; Winburn v. Witt, 134 Ky. 339, 120 S.W. 293. The mortgagors, or their successors, put her in possession for the purpose of dissolving the relationship of mortgagor and mortgagee. She was thereupon placed in a position to perfect her title, and this has now been accomplished by the passage of time.
Affirmed.
SEBRING, C.J., and TERRELL and BARNS, JJ., concur.