Brumick v. Morris

• Decision Date: 08 January 1938
• Parties: BRUMICK et al. v. MORRIS.
• Court: Florida Supreme Court

178 So. 564

131 Fla. 46

BRUMICK et al. v. MORRIS.

Florida Supreme Court, Division B.

January 8, 1938

Rehearing Denied Feb. 16, 1938.

Suit by Iola V. Brumick and others against Belva E. Morris, to declare a warranty deed a mortgage, wherein the answer set up a counterclaim. From a decree dismissing the bill, plaintiffs appeal.

Affirmed.

See also, 122 Fla. 236, 165 So. 351. Appeal from Circuit Court, Hillsborough County Harry N. Sandler, judge.

COUNSEL

Jas. B Gibson, of Tampa, and Eldridge Cutts, of Lakeland, for appellants.

Hampton, Bull & Crom, of Tampa, for appellee.

OPINION

CHAPMAN Justice.

This is an appeal from a final decree dated April 24, 1936, entered by the circuit court of Hillsborough county, Fla. On March 7, 1936, plaintiffs below, appellants here, filed their amended bill of complaint against the defendant, alleging, among other things, the plaintiffs inherited the property described in the bill of complaint and is referred to as valuable and well-located property situated in the city of Tampa and had been in the family of the plaintiff for many years. That city, county, and state taxes had accumulated and these liens remained unpaid for some 3 or 4 years. These unpaid tax certificates were placed with an attorney for collection and the plaintiffs borrowed of the defendant $7,250 and gave notes and mortgage securing the sum due 5 years after October 30, 1930, with interest due and payable, semiannually, and represented by notes in the sum of $290 each and maturing during the 5-year period. The borrowed money was used to pay taxes on the mortgaged premises, except a certificate of deposit in the sum of $1,250 on the Citizens Bank of Tampa, being a part of the $7,250 loan. The rental income from the mortgaged premises was insufficient to pay the semiannual installments of interest and the taxes subsequently maturing thereon when on November 10, 1932, foreclosure was instituted on the said notes and mortgage. The parties by agreement under date of March 2, 1933, compromised the foreclosure by the plaintiffs to this suit executing and delivering to the defendant a warranty deed to the mortgaged premises and at the same time an option agreement to purchase said property by the plaintiffs on or before 1 year after date. Copies thereof are attached to the amended bill of complaint and by appropriate language made a part thereof. On March 24, 1934, defendant here granted plaintiffs three additional months in which to make application and obtain from the Home Owners Loan Corporation the money to pay the mortgage indebtedness.

It is alleged that the warranty deed, the one-year option to purchase, and the 90 days' extension, granted to obtain the money from the Home Owners Loan Corporation, are each void, without consideration, and obtained by means of force, fear, and compulsion, the plaintiffs being compelled to accede to the wishes and desires of the defendant; that defendant charged and imposed a rate of interest for the use of said money which in law amounted to usury. The value of the mortgaged premises was estimated at being from $25,000 to $40,000. The suit to foreclose has not been dismissed, nor the mortgage satisfied of record. That the deed dated March 2, 1933, is in law and equity a mortgage and the plaintiffs have a right to redeem. The defendant from March, 1934, to February, 1935, collected rents on said property and obtained possession under a final judgment of unlawful detainer or a writ of restitution issuing thereon out of the circuit court of Hillsborough county, Fla., and upon writ of error the same was rendered void and of no effect.

It is alleged that several of the small houses were by the defendant torn down and removed. The prayer of the bill of complaint is (a) full and complete accounting; (b) payment for houses destroyed; (c) restraining order against all possible litigation; (d) that the warranty deed dated March 2, 1933, be decreed a mortgage. The amended bill has a number of exhibits attached and made a part thereof. Likewise nine interrogatories are attached and each required an answer or answers thereto by the defendant, as required by the rule.

On March 13, 1936, defendant filed an answer and motion to dismiss the amended bill of complaint. The answer denies that plaintiffs are the owners of the mortgaged premises or entitled to the possession or right of possession thereof. It is admitted that the plaintiffs are darkies and the family for many years resided on the property; admits the loan of the money and explains the receipt and expenditure thereof by the plaintiffs; admits the receipt of the deed and alleges the delivery of the notes and mortgage with satisfaction thereof by defendant to the plaintiffs; denies penalties exacted by statute for usury. The defendant did not force plaintiffs to accept the Citizens Bank certificate in the sum of $1,250 and no usurious transaction accrued between the parties to this suit. The answer contains other matter by admission, confession, or denial not recessary to recite.

The answer sets up as a counterclaim certain facts with appropriate prayers but, in view of the fact that no evidence was offered by the defendant and the suit dismissed on final hearing, the same is not material for a determination of this suit. The answer has a number of exhibits attached and motion to dismiss the amended bill of complaint. The record shows other important items not necessary to appear in this opinion. The testimony was taken before Hon. Harry N. Sandler, a judge of said circuit court, and after the plaintiffs rested their case and before any evidence was heard by the court in behalf of the defendant, counsel moved the court for an order on the motion to dismiss filed simultaneously with the defendant's answer and, after argument, the motion was sustained and the amended bill dismissed. An appeal from the final decree was taken and the record perfected and the cause is here for review with several assignments of error predicated largely on the final decree of dismissal.

Counsel for plaintiffs devote several pages of their brief in discussing the law and evidence controlling usury as applies to this suit. While this phase of the suit is important, we feel that the point may become material, provided the deed dated March 2, 1933, is decreed a mortgage. Let us apply the law to the evidence adduced and reach a conclusion as to this conveyance. The statute controlling this subject is section 5724, C.G.L., section 3836, R.G.S., viz.:

'Instruments deemed mortgages.--All deeds of conveyance, obligations conditioned or defeasible, bills of sale or other instruments of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money, whether such instrument be from the debtor to the creditor or from the debtor to some third person in trust for the creditor, shall be deemed and held mortgages, and shall be subject to the same rules of foreclosure and to the same regulations, restraints and forms as are prescribed in relation to mortgages.'

Counsel for plaintiffs cite and rely on the utterances of this court as expressed in Cary & Co. v. Hyer, 91 Fla. 322, 107 So. 684, 687, viz.:

'A cardinal rule in the construction of ambiguous contracts is that the intention of the parties, when ascertained, will govern. See Scotch Mfg. Co. v. Carr, 53 Fla. 480, 43 So. 427, and compare People's Savings Bank & Trust Co. v. Landstreet, 80 Fla. 853, 87 So. 227. Where parties intend a conditional sale rather than a mortgage, that intention will be given effect. Smith v. Hope, 47 Fla. 295, 35 So. 865. But in view of the provisions of our statute, even if it were not so independently thereof, neither artifice or form nor superficial declaration of intention will successfully obscure the true nature of the transaction. The statute is designed to insure effectuation of the genuine purpose and intention of the parties, by subordinating thereto the ostensible form in which the transaction is finally couched. That purpose and intention is therefore to be ascertained, not alone from the form of the instrument which evidences the transaction, but principally from the conduct of the parties and a fair consideration of the entire transaction as disclosed by the underlying facts and circumstances. An important if not a controlling guide in determining the intention of the parties is the purpose sought to be accomplished by them. Purpose is usually an unerring indication of intention. Under our statute, an attempted agreement between the parties that an instrument shall not operate as a mortgage, but as an absolute conveyance, when wholly inconsistent with the surrounding facts and attendant circumstances, does not make absolute a conveyance given 'for the purpose or with the intention of securing the payment of money,' whatever may be the form of the conveyance, and the mere absence of defeasance does not alone determine the matter. Pittman v. Milton, 69 Fla. 304, 68 So. 658; Connor v. Connor, 59 Fla. 467, 52 So. 727; Willy-Gabbett Co. v. Williams, 53 Fla. 872, 42 So. 910; Hull v. Burr, 58 Fla. 432, 50 So. 754. If, in view of all the circumstances, the transaction resolves itself into security for the payment of money, it is a mortgage. Elliott v. Conner, 63 Fla. 408, 58 So. 241; 11 C.J. 406.'

It is conceded by counsel for the parties here that the burden of proof is upon the plaintiffs to establish the deed in question is a mortgage. The purpose of the deed and the intention of the parties are material. From all the facts and attending circumstances then and there controlling the parties was the deed in question executed and delivered for the purpose of conveying the fee simple title or was...