ATLANTIC BANK TRUST CO. v. SENGSTAK ET AL., 95 Fla. 606 (1928)

116 So. 267

ATLANTIC BANK TRUST COMPANY, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, Appellant, v. THEODORE SENGSTAK, M. E. SHUMAKER (ALSO KNOWN AS MELVIN E. SHUMAKER), AND MARVIE M. SHUMAKER, HIS WIFE, AND EDWARD BROAD, TRUSTEE, Appellees.

Supreme Court of Florida, Division B.
Opinion Filed March 28, 1928.

Page 607

An Appeal from the Circuit Court for Volusia County; M. G. Rowe, Judge.

Affirmed.

Hull, Landis Whitehair, for Appellant;

F. W. Pope, for Appellees.

PER CURIAM. —

The controlling litigated question in this case was whether or not the mortgage held by the appellant was prior in dignity to the mortgage sought to be foreclosed by Sengstak. The determination of this question depended upon the consideration of testimony taken before a special master and reported to the court. This Court has repeatedly held that,

“While the findings and conclusions of a chancellor, where the testimony is not taken before him but before an examiner or master and the chancellor is not afforded the opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury and are not so conclusive, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous. Mock v. Thomson, 58 Fla. 477, 50 So.2d 673; Lucas v. Wade, 43 Fla. 419, 31 So.2d 231.”

See Gollnick et ux. v. Barker, opinion filed November 7th, 1927, reported in 114 Sou., page 527.

There were assignments of error bringing many other questions to the attention of this Court, but a careful consideration of the record discloses no reversible error.

Page 608

The decree of the chancellor should be affirmed and it is so ordered.

Affirmed.

WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur.

ELLIS, C. J., AND STRUM, BROWN, J. J., concur in the opinion and judgment.