De Bartlett v. De Wilson

• Decision Date: 19 October 1906
• Parties: DE BARTLETT v. DE WILSON et al.
• Court: Florida Supreme Court

42 So. 189

52 Fla. 497

DE BARTLETT v. DE WILSON et al.

Florida Supreme Court, Division A.

October 19, 1906

Appeal from Circuit Court, Hillsborough County; Joseph B. Wall Judge.

Bill by Eloisa B. De Wilson and Jose O. Wilson against Serafina W. De Bartlett. Decree for plaintiffs, and defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

An agreement that a deed conveying land shall operate as a mortgage to secure a debt is not within the statute of frauds, since it is not a contract for the sale of lands or any interest therein. It is a right reserved by the grantor to redeem the land upon the payment of the debt. This right is recognized by the statute, and is not required to be evidenced by writing.

The relations existing between the parties at the time of its execution may be considered in determining whether a deed of conveyance of land absolute on its face was intended to operate as a mortgage to secure the payment of a debt.

Where an agent of a creditor is authorized to foreclose a mortgage on land and to secure a settlement of the indebtedness, and the agent, instead of foreclosing the mortgage, takes a conveyance of the land to his principal, with an agreement that the rents from the land are to be applied to the debt and that the land will be reconveyed to the debtor when he pays the debt, and the creditor accepts and retains the conveyance, he does so subject to the conditions that properly render it a mortgage, especially when the consideration for the conveyance was only the principal of the unpaid debt.

In order to carry out the intention of the parties, and to prevent fraud and imposition, and to promote justice, parol evidence is admissible to show that a deed of conveyance of land absolute upon its face was intended to operate as a mortgage; and, where it is shown that such a conveyance was executed to secure the payment of money, equity will treat it as a mortgage and will decree a reconveyance upon accounting and settlement.

In a suit to have a deed conveying land adjudged to be a mortgage and for a reconveyance upon accounting and settlement, where it is admitted that the debt existed, and that the deed was executed to prevent the foreclosure of a mortgage upon the same land for such indebtedness, and no consideration for the conveyance other than the debt is shown, and there is ample evidence to sustain the finding of the chancellor that the deed was intended to secure the payment of the debt, a decree holding the deed to be a mortgage and directing an accounting before a master will not be disturbed on appeal, on the ground that the proof is not clear, convincing, and positive.

COUNSEL P. O. Knight, for appellant.

Macfarlane & McKay, for appellees.

OPINION

WHITFIELD J.

The appellees, as complainants, filed a bill in chancery in the circuit court of Hillsborough county, in which it is alleged that on April 30, 1891, the complainants, being indebted to the defendant in the sum of $1,500, made and jointly signed a promissory note to defendant in the sum of $1,500, with interest at 8 per cent. per annum for five years, and jointly executed a mortgage on certain real estate, the separate property of the complainant Eloisa B. De Wilson, to secure the payment of the note; that on November 30, 1899, the defendant demanded payment in full of the note and also of the interest, amounting to $110, and threatened to foreclose in default of such payments; that complainants were then unable to pay, and so stated to the defendant, whereupon, in order that the rents accruing from the mortgaged property might be collected by the defendant and applied upon the payment of the principal and interest of the note as aforesaid, it was agreed by and between complainant Eloisa B De Wilson and the defendant, Serafina Wilson De Bartlett through and by their agents, Jose O. Wilson and Luis Bartlett, respectively, that the mortgaged property should by an absolute deed of conveyance be conveyed to the said Serafina Wilson De Bartlett in fee simple, and thereupon complainants, by an absolute deed of conveyance dated November 28, 1899, conveyed to the said Serafina Wilson De Bartlett the mortgaged property, which said deed was recorded December 1, 1899; that the transaction, agreement, and conveyance, with all its details and conditions, were made with the full knowledge of both such principals and their said agents; that said deed of conveyance, although appearing to be absolute on its face, was not intended to be such by complainant Eloisa B. De. Wilson and the said Serafina Wilson De Bartlett, nor by their agents, Jose O. Wilson and Luis Bartlett, respectively, but, on the contrary, it was expressly understood and agreed that the said premises thereby conveyed were to be held by the said Serafina Wilson De Bartlett simply as a security for the payment of the said sum of money and interest as aforesaid, and that, upon the payment of that sum and the interest to the said Serafina Wilson De Bartlett, she would reconvey the said premises to complainant Eloisa B. De Wilson by an absolute deed; that said Serafina Wilson De Bartlett on November 28, 1899, entered into the possession of the said premises and the receipt of the rents and profits thereof, and still retains the same; that at the time the said deed was made conveying the said property to Serafina Wilson De Bartlett she was in Cuba, and the said deed was delivered to her agent, Luis Bartlett, who had said deed recorded, it being expressly understood and agreed by and between both Jose O. Wilson, as agent for complainant Eloisa B. De Wilson, and Luis Bartlett, as agent for Serafina Wilson De Bartlett, and between said principals, that the rents accruing from the said property were to be paid, and they have been paid, to the said Serafina Wilson De Bartlett since the date of the deed herein named, and that the rents so collected by the said Serafina Wilson De Bartlett should be applied upon the payment of the principal and interest on the note hereinbefore mentioned; and it was further expressly understood and agreed by and between all of the above-mentioned parties, both principals and agents, that upon the payment of the amount herein named, both principal and interest as aforesaid, the rents and profits above mentioned to be included by complainant, to the said defendant, the said Serafina Wilson De Bartlett would reconvey the said premises to complainant Eloisa B. De Wilson by good and sufficient deed; that on November 28, 1899, the date of the said deed of conveyance, the property therein described at its true value was worth $3,500, but that since that time the property had increased in value, and to-day at its true value is worth $5,000; that the said increased value has not been from improvements made thereon by the said Serafina Wilson De Bartlett, but caused by the increased demand for property in the community in which the said property is located; that the said property is situated on the corner of Eighth avenue and Thirteenth street, in Ybor City, and that on the date aforesaid the said property rented for $11 per week, and since that time the property has rented well. The prayer of the bill is for an accounting and a reconveyance of the land upon settlement.

The answer of the defendant admits that on April 30, 1891, the complainants, being indebted to the defendant in the sum of $1,500, executed a note and mortgage as alleged;...