Aycock Bros. Lumber Co. v. First Nat. Bank

• Decision Date: 11 December 1907
• Citation: 54 Fla. 604,45 So. 501
• Parties: AYCOCK BROS. LUMBER CO. v. FIRST NAT. BANK OF DOTHAN.
• Court: Florida Supreme Court

45 So. 501

54 Fla. 604

AYCOCK BROS. LUMBER CO. v. FIRST NAT. BANK OF DOTHAN.

Florida Supreme Court, Division B.

December 11, 1907

Appeal from Circuit Court, Jackson County; J. Emmet Wolfe, Judge.

Bill by the First National Bank of Dothan against the Aycock Bros Lumber Company. Decree for complainant, and defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

In equity, where the relation of vendor and vendee has been established by the vendor executing a contract to convey the legal title to property upon the payment by the vendee of the purchase price that he has obligated himself to pay, the vendee is regarded as the real beneficial owner, even though he has not paid the purchase price. The vendor holds the legal title as trustee, and when the terms of the contract are complied with he is bound to convey. Until those terms are complied with, the legal title remains in the vendor as his security, or, as it is otherwise expressed, he has a lien upon the vendee's equitable estate as security for the payment of the purchase money. In effect this lien consists in the vendor's right to enforce payment of the price by a suit in equity against the vendee's equitable estate in the land, instead of by means of an ordinary action at law to recover the debt. Both in England and America the vendor's equitable remeby consists in a suit in the nature of a strict foreclosure, by which the vendee is decree to pay the price within a limited time, and in default of such payment his equitable estate is foreclosed and sold to pay the purchase price; and in a case where the vendor has sold and assigned the negotiable evidence of indebtedness given for the purchase money and is made a party defendant to such foreclosure proceedings, both his and the vendee's estate in the property would pass by a foreclosure sale under such decree.

Where a negotiable note is given for the purchase money of land, the vendor retaining title as security for its payment, all the essential incidents of a mortgage attach, and a transfer of such note passes an equitable right to the assignee, whether the vendor is liable to him or not, to charge the lands with its payment.

The established rule is that knowledge acquired by the officers or agents of a corporation, while not acting for the corporation, but while acting for themselves, is not imputable to the corporation.

COUNSEL

C. L. Wilson, for appellant.

Blount & Blount and Mr. Carter, for appellee.

In May, 1906, the appellee, as complainant below filed the following bill of complaint in equity, with the Exhibits A and B thereto attached, in the circuit court of Jackson county against the appellant as defendant below:

'The bill of complaint of the First National Bank of Dothan against Aycock Brothers Lumber Company alleges:

'(1) That the complainant is a corporation organized and doing business under authority of the act of Congress authorizing the organization of national banks, and is located in the city of Dothan, Alabama.

'(2) That the defendant is a corporation chartered, organized, and doing business under the laws of the state of Georgia, and having its principal place of business in the county of Jackson, state of Florida.

'(3) That on or about December 12, 1904, one D. C. Carmichael, who was then the owner of the property hereinafter mentioned, contracted with the defendant that he would sell to the defendant, and defendant agreed to buy, certain real and personal property, then and now situated in Jackson county, Florida, for the sum of eight thousand, five hundred and seventy and 14/100 ($8,570.14) dollars, payable on March 1, 1906, and the defendant executed and delived to the said Carmichael its promissory note for said sum, dated December 12, 1904, to the other of D. C. Carmichael, with interest at the rate of eight (8%) per cent. per annum from maturity until paid, which said note also provided that after default of payment, and it should be placed in the hands of an attorney for collection, defendant to pay attorney's fees of five (5%) per cent. if paid before suit, and ten (10%) if paid after suit, and costs of collection.

'(4) That upon the making of said note, the said Carmichael put the defendant in possession of the said property, but with the agreement between him and the defendant that the title thereto should remain in the said Carmichael until full payment of the said sum agreed to be paid as aforesaid therein by the defendant.

'(5) That thereafter, to wit, on August 4, 1905, in order to evidence the said agreement, the defendant and the said Carmichael executed a contract, setting forth in full the terms of the agreement on the part of the said Carmichael to sell the said property and of the defendant to buy the same, a copy of the said agreement being hereto attached, marked 'Exhibit A,' and prayed to be made a part hereof; and a copy of the note before mentioned, which is the note also mentioned in the said contract, is hereto attached, and marked 'Exhibit B,' and prayed to be made a part hereof. A full description of the property agreed by the said Carmichael to be sold to the defendant and by the defendant to be bought from the said Carmichael is contained in the said copy of the contract, and is hereby referred to for particulars thereof.

'(6) That upon the execution and delivery of the said note and the said contract to the said D. C. Carmichael he for a valuable consideration assigned and indorsed the said note and assigned and transferred the said contract to the complainant, who thus became and has ever since been the true and bona fide owner of the said indebtedness and of the rights of the said Carmichael under the said contract.

'(7) That although the time for the payment of the said note, and thereby of the consideration to be paid by the defendant to the complainant, has long since past, yet that the defendant has not paid the said sum evidenced by the said note and mentioned in the said contract to the complainant, nor has it paid any part thereof, and that the said note has been duly presented and protested for nonpayment, at a cost to the complainant of two ($2.00) dollars.

'(8) That the complainant is advised and believes, and therefore avers, that by the said contract and the said assignment from the said D. C. Carmichael it became and has a right to require the specific performance of the said contract by the defendant, and to obtain from this honorable court a decree that the said defendant shall pay to it the said consideration money, and a declaration that the said amount so decreed shall be a lien upon the said property, and that the same may be sold to satisfy the said lien.

'To the end, therefore, that the defendant may full, true, and direct answer make to the premises, under its corporate seal, and to the best and utmost of its knowledge, recollection, information, and belief, and that the amount due by the defendant to the complainant under and virtue of the said promissory note and the said contract shall be ascertained under the direction of this honorable court, and that the defendant may be decreed to pay the same to the complainant within a short time, to be fixed by the court, and that the amount so ascertained, together with the attorney's fee as provided in said note, may be decreed to be a lien upon the property described in the said contract, that said property may be sold to satisfy the said lien, and that, if the proceeds of said sale shall note be sufficient to pay the said sum so decreed, a decree may be entered against the defendant for the amount so remaining unpaid, and that the complainant shall have execution for the residuary sum so decreed against the goods, chattels, lands, and tenements of the defendant.

'And that the complainant may have such other and further relief as in the premises may seem meet and fit unto this honorable court,

'Complainant prays process of subpoena to the defendant Aycock Brothers Lumber Company, returnable according to law and the course of this honorable court.

'And complainant will ever pray, etc.

'Blount & Blount.

'Solicitors for Complainant.'

Exhibit A.

'State of Florida, Jackson County.

'This contract, made and executed on this the 4th day of August, 1905, between D. C. Carmichael, who is now the sole owner of the entire stock and all the property of the Carmichael-Williams Company, formerly doing business in said state and county, parties of the first part, and Aycock Brothers Lumber Company, a corporation organized under the laws of the state of Georgia, doing business in said state and county, party of the second part, witnesseth:

'(1) That for and in consideration of the sum of eight thousand five hundred and seventy dollars and twenty-six cents ($8,570.26), to be paid by said party of the second part to the said parties of the first part, and for which sum the party of the second part has this day executed its promissory note, payable to the order of the parties of the first part, and becoming due on the 1st day of March, 1906, the said parties of the first part do hereby agree to sell and convey unto the said party of the second part the following property, to wit:

'All that certain parcel of land, lying and being in the county of Jackson and state of Florida, described as follows: Beginning seven chains and a half north from the southeast corner of the S.E. 1/4 of the S.W. 1/4, and running west ten chains thence north thirteen chains and a half to center of railroad bed; thence east nine degrees north ten chains; thence south to the point of commencement--containing fourteen and a half acres, more or less; and also the N. 1/2 of the S.W. 1/4 and all that part of the S. 1/2 of the S.W. 1/4 lying north of the roadbed of the...