Florida District Courts of Appeal, 1962

Arno v. Hotel Atlantis, Inc.

Florida District Courts of Appeal · Decided August 14, 1962 · Carroll, Horton, Pearson, Tillman

143 So. 2d 694 (Southern Reporter, Second Series)

Opinion of the Court

PER CURIAM.

Affirmed.

Concurring Opinion

CARROLL, Judge

(concurring specially).

This is a proceeding in equity by a mortgagee of a leasehold interest to foreclose, and to compel the lessor to account for and restore a substantial security deposit1 which the lessor was alleged to have misused and disposed of. A motion of the defendant lessor to be dismissed from the cause was granted, and the appeal is from the order dismissing that defendant.

I would dissent from the majority af-firmance of the holding that the mortgagee of this leasehold, in foreclosing thereon, may not join the lessor who is alleged to have improperly disposed of the lease security deposit, as being contrary to established law, were it not for the fact (not argued in the briefs) that the lease in question contained a provision against any mortgage thereof.2 Therefore, I concur in the judgment.

. “D) Lessor acknowledges that simultaneously with the execution of this lease, it has received from the Lessee one hundred fifty-five (155) debenture bonds of Atlantis Hotel, Inc., each in the face amount of One Thousand ($1,000.00) Dollars, and agrees to hold the same as security for the full and faithful performance of all of the terms, covenants and conditions of this lease by the Lessee to be kept and performed.”

. Article X of the lease, “Mutual Covenants,” included the following:

“20. The lessee shall have no right to convey or encumber by mortgage or any other instrument and for any purpose whatsoever this lease and any and all rights accruing to it hereunder.”

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