Opinion
No. 68-415.
June 11, 1969. Rehearing Denied July 15, 1969.
Appeal from the Circuit Court for Hillsborough County, James A. Lenfestey, J.
David Hyman, Tampa, for appellant.
Leonard H. Gilbert, of Carlton, Fields, Ward, Emmanuel, Smith Cutler, Tampa, for appellees.
The trial judge held on sufficient evidence that the second mortgage held by appellant was invalid as an unlawful preference proscribed by Florida Statutes § 608.55 (1965), F.S.A. He correctly allowed amendment of the pleadings to conform to proof that the holder of the second mortgage paid $1300.12 to the holder of the first mortgage to protect its security position, but did not in the final decree make a finding respecting this amount. Accordingly, the final judgment is affirmed in part and reversed for further proceedings respecting the claim for credit in the amount of $1300.12.
LILES, C.J., and McNULTY, J., concur.