Enns-halbe Co. v. Templeton

Decision Date25 May 1931
Citation101 Fla. 609,135 So. 135
PartiesENNS-HALBE CO. v. TEMPLETON.
CourtFlorida Supreme Court

Error to Circuit Court, St. Lucie County; Elwyn Thomas, Judge.

Action by the Enns-Halbe Company, a corporation, against E. C Templeton. Judgment for the defendant, and plaintiff brings error.

Judgment reversed and cause remanded.

COUNSEL Fee & Liddon, of Ft. Pierce, for plaintiff in error.

Nottingham & Denison, of Ft. Pierce, for defendant in error.

OPINION

BUFORD C.J.

In this case the writ of error is to review the judgment of the circuit court, which judgment was entered on sustaining demurrer to an amended declaration. The declaration alleges:

'For that, on to-wit, the 22nd day of December, 1926, the said E. C. Templeton became the Grantee in a Warranty Deed from Grace Long Flinn and David Flinn, her husband, said deed being under seal, duly acknowledged and conveying to said E. C. Templeton the following described land in St. Lucie County, Florida, to wit: * * * A certified copy of said Warranty Deed being attached to the original declaration in this cause, and by reference is made a part of this amended declaration.
'That on the 21st day of January, 1926, Sunrise Land Company, a Florida Corporation, was the owner of the said hereinbefore real estate, and on said date conveyed said property to one A. G. Roberts and Geraldine R. Roberts, his wife, of Indian River County, Florida. That on the said 21st day of January, 1926, the said A. G. Roberts and Geraldine R. Roberts, his wife, made and executed three certain promissory notes of that date, under seal, for the sum of $500.00 each, due on or before one, two and three years after date, respectively, with interest at 8% payable semi-annually, and to secure said notes, the said A. G. Roberts and Geraldine R. Roberts, his wife, executed a mortgage deed of that date on said property, to said Sunrise Land Company. That the said Sunrise Land Company, a corporation, sold and delivered said notes and morgage to one Stanley M. Hyer, under and by virtue of an assignment of mortgage, filed the 23rd day of July 1926, and recorded in Assignment Book 2, page 448, of the St. Lucie County Records. That the said promissory notes were endorsed by the Sunrise Land Company, a corporation, and by E. L. Taylor, R. L. Jenkins, David Flinn, R. R. Martin and R. S. Walton at the time of their sale to said Stanley M. Hyer. That the said A. G. Roberts and Geraldine R. Roberts, his wife, conveyed the said mortgaged premises, by Warranty Deed, to Grace Long Flinn of St. Lucie County, Florida, on the 9th day of December, 1926, which said deed was filed for record December 22nd 1926, and recorded in Deed Book 68, page 334, of the St. Lucie County Records. That the said Grace Long Flinn is the wife of the said David Flinn who endorsed the said promissory notes. That said Grace Long Flinn and David Flinn her husband, conveyed said premises to the defendant, E. C. Templeton, as hereinbefore alleged.
'That the said E. C. Templeton purchased the said premises from said Grace Long Flinn and David Flinn, her husband, on the 22nd day of December 1926, by Warranty Deed, which said deed stated that the conveyance was subject to the mortgage and notes hereinbefore described and which were at that time owned by said Stanley M. Hyer. That the said David Flinn and Grace Long Flinn, his wife, conveyed said premises to said defendant, the sole consideration being that the said defendant would pay off the said mortgage and notes and also a prior mortgage on said premises, and the said Grace Long Flinn and David Flinn, her husband, conveyed the said premises to said defendant in consideration of defendant's promise to pay said notes and mortgage, and thereby release the said David Flinn, who was endorser on said notes, and that no other consideration moved to the said Grace Long Flinn and David Flinn, her husband, except that the defendant's promise to pay said notes and mortgage, and the said mortgage debt was a part of the purchase price to be paid for said land by the said defendant, and to thereby release the said David Flinn as an endorser on said notes. That the said Stanley M. Hyer sold said three promissory notes and the mortgage securing same to one Hattie E. Chamberlain, by assignment of mortgage dated September 17th, 1927, and filed November 15th, 1927, and recorded in Assignment Book 3, page 229 of St. Lucie County records. That said Hattie E. Chamberlain on the 25th day of November, 1927, sold the last two of said promissory notes, the first of said notes having been paid by said defendant to the plaintiff, and duly assigned said mortgage to the plaintiff for a valuable consideration by assignment of mortgage dated the 25th day of November 1927, and recorded in Assignment Book 3, page 232 of St. Lucie County records, and the plaintiff thereby became the owner and holder of last two said promissory notes and said mortgage deed. The original assignment of mortgage from Hattie E. Chamberlain to the plaintiff being attached to the original declaration filed in this cause and market 'Exhibit B,' and by reference made a part hereof. That the said defendant, E. C. Templeton, partially carried out his agreement to pay the said promissory notes and paid the first of the two promissory notes, which were owned by this plaintiff, and has paid interest on the last of said notes for the sum of $500.00 to January 21st, 1927, but has failed and refused to pay the principal of said note, or any part thereof, or any interest thereon since the 21st day of January, 1927, and no person or persons has paid same or any part thereof for the said defendant, although payment thereof has been demanded of the said defendant at various times and the defendant has refused to pay same, or any part thereof. That the promise of defendant to pay said notes was known to plaintiff to pay said purchased said notes and was the inducement for the purchase of same by plaintiff.'

The declaration then contains an allegation that the defendant is liable for attorney's fees. The facts alleged in the declaration show that the defendant is not liable for attorney's fees, but the quoted part of the declaration is sufficient to constitute a cause of action for the principal and interest due to the plaintiff on the indebtedness therein referred to.

We may say here that counsel for plaintiff in error are confused when they conceive that there is a conflict in the utterance of this court in the case of Herrin v. Abbe, 55 Fla. 769, 46 So. 183, 18 L. R. A. (N. S.) 907, from which case two paragraphs are quoted, as follows:

'Where a deed conveying real estate has been accepted, testimony as...

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12 cases
  • International Erectors v. Wilhoit Steel Erectors & R. Serv.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 18, 1968
    ...Fidelity & Guaranty Co. of New York v. Plumbing Department Store, Inc., et al., 117 Fla. 119, 157 So. 506 (1934); Enns-Halbe Co. v. Templeton, 101 Fla. 609, 135 So. 135 (1931). On the other hand, third party beneficiaries recognized as incidental beneficiaries have no enforceable rights und......
  • Auto Mut. Indem. Co. v. Shaw
    • United States
    • Florida Supreme Court
    • November 9, 1938
    ... ... 252, 178 N.E. 498, 81 A.L.R. 1262, and ... note; Wright v. Terry, 23 Fla. 160, 2 So. 6; ... Hunter v. Wilson, 21 Fla. 250; Enns-Halbe Co. v ... Templeton, 101 Fla. 609, 135 So. 135; Johnson ... Electric Co. v. Columbia Casualty Co., 101 Fla. 186, 133 ... So. 850, 77 A.L.R. 1 ... ...
  • Alabama-florida Co. v. Mays
    • United States
    • Florida Supreme Court
    • June 15, 1933
    ... ... agreement by the grantee at the time of the taking of the ... deed being sufficient. Enns-Halbe Co. v. Templeton, ... 101 Fla. 609, 135 So. 135. It was also held in the same case ... that, where the right of the mortgagee to recover is ... ...
  • Hubbard v. Highland Realty & Investment Co.
    • United States
    • Florida Supreme Court
    • July 23, 1934
    ... ... whom the grantee agreed to pay. See Herrin v. Abbe, ... 55 Fla. 769, 46 So. 183, 18 L. R. A. (N. S.) 907; ... Enns-Halbe Co. v. Templeton, 101 Fla. 609, 135 So ... 135; Hardee v. Bennett, 105 Fla. 282, 140 So. 906, ... 141 So. 753, 143 So. 593; Hartman v. Pool, 103 ... ...
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