
    JEFFERSON NATIONAL BANK OF MIAMI BEACH, a national banking association, Appellant, v. THREE WAY CORPORATION, a Florida corporation, Appellee.
    No. 69-586.
    District Court of Appeal of Florida, Third District.
    March 3, 1970.
    Courshon & Courshon and Robert L. Weintraub, Miami Beach, for appellant.
    Kaplan & Shapiro, Miami Beach, for appellee.
    Before PEARSON, C. J., and CHARLES CARROLL and SWANN, JJ.
   PER CURIAM.

The basic question presented upon this appeal concerns the legal effect upon the title to real property of a recorded “Agreement Not to Encumber”. The real property was mortgaged after the agreement was recorded. The appellant bank to whom the agreement was given was made a party to a foreclosure instituted by the appellee corporation. The bank appeals a final judgment which held that the bank did not have a prior lien on the land.

The appellant has presented four points, all of which argue that the agreement is in actuality an equitable mortgage. Unfortunately this question is not presented by the record. Appellant was made a defendant but failed to offer evidence at the final hearing. Without proof of more than a breach of the contract not to encumber by the person who was also the mortgagor, there can be no prejudicial error in the foreclosure of the mortgage. Therefore we must decline to pursue the question further.

Affirmed.  