Connor v. Connor

• Decision Date: 09 June 1910
• Citation: 52 So. 727,59 Fla. 467
• Court: Florida Supreme Court
• Parties: CONNOR v. CONNOR et al.

52 So. 727

59 Fla. 467

CONNOR v. CONNOR et al.

Florida Supreme Court, Division A.

June 9, 1910

Appeal from Circuit Court, Marion County; W. S. Bullock, Judge.

Action by Rubie C. Connor, by next friend, Jefferson D. Young against Claude E. Connor and another. A demurrer to the bill was sustained, and complainant appeals. Reversed.

Syllabus by the Court

SYLLABUS

A deed absolute on its face may be parol evidence be shown to be a mortgage, and, in cases of doubt, the instrument should be held to be a mortgage.

An instrument must be deemed and held to be a mortgage, whatever may be its form, if, taken alone or in connection with the surrounding facts and attendant circumstances, it appears to have been given for the purpose or with the intention of securing the payment of money, and the mere absence of terms of defeasance cannot determine whether it is a mortgage or not.

Under the statutes of this state a mortgage acquires only a specific lien on the property of another described in the mortgage, and an 'instrument of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money,' may upon its face convey title to property, subject to the provisions of the statute that it 'shall be deemed and held a mortgage,' if by extrinsic facts the statute is shown to apply.

While an express provision that a contract to reconvey is not to be regarded as an evidence that the conveyance was intended as a mortgage may be of controlling force if it is consistent with the entire transaction, yet, if it is not in harmony with all of the facts and circumstances showing the intention of the parties, the express provision that it is intended to be a sale, and not a mortgage, does not determine the matter.

If an instrument is a mortgage when executed, its character does not afterwards change; for, 'once a mortgage, always a mortgage,' is a maxim of the law.

At common law a mortgagee took legal title and foreclosure was to terminate the mortgagor's right to redeem. Under the statute, the mortgagee has only a lien and foreclosure enforces the lien.

The right of redemption now is to satisfy and remove the lien. The rights to foreclose and to redeem afford mutuality.

Where an agreement that a conveyance is not a mortgage, but an absolute conveyance, is wholly inconsistent with the facts of the case, such agreement does not make absolute a conveyance that under the statute may be shown to have been executed 'for the purpose and with the intention of securing the payment of money.'

COUNSEL Wm. Hocker and L. W. Duval, for appellant.

Hampton & Hampton, for appellees.

OPINION

WHITFIELD C.J.

The bill of complaint alleges, in substance, that Rubie C. Connor is the wife of Claude E. Connor; that, the husband being indebted to the defendant Elliott in certain sums of money upon open account and otherwise, the wife consented to secure the payment of said indebtedness and any future indebtedness of the husband to Elliott, and, joined by her husband executed and delivered to Elliott conveyances to certain lands; that, though in form absolute conveyances, yet the deeds were given for the purpose of securing the payment of the said indebtedness of the husband to Elliott; that the lands are the property of Rubie C. Connor, who is in possession of them; that as part of the transaction Elliott executed and delivered to the plaintiff the following agreement, viz.:

'The State of Alabama, Etdowah County:

'Whereas I have this day purchased of Mrs. Rubie C. Connor and husband C. E. Connor the lands described in their deeds executed by them to me this day, and

'Whereas the consideration of said deeds is the absolute payment by said Rubie C. Connor of the present dindebtedness of her husband C. E. Connor to myself, Now

'Know All Men By These Presents: That at any time before Dec. 31, 1908, I hereby agree upon the payment to me by Mrs. Connor of an amount equal to said C. E. Connor's present indebtedness to me, with interest from date to sell and convey by quit claim deed to Mrs. Rubie C. Connor all the lands described in her said deeds to myself.

'It is understood that the deeds executed by Rubie C. Connor and her husband to me this day are not mortgages but are absolute deeds giving Mrs. Rubie C. Connor the right to buy back said lands on the terms and conditions expressed herein.

'Executed in duplicate, Mch. 23rd, 1908.

'Witness:

J. M. Elliott, Jr.

'J. H. Harden.'

'A true copy of the original, filed 24th and recorded 31st December, 1908.

'S. T. Sistrunk, Clerk,

'By M. E. Sumner, D. C.'

It is further alleged that the complainant, Rubie C. Connor, is ready and willing to pay to said Elliott any and all amounts due him by her husband the payment of which is secured by the said conveyances, and that complainant is willing to produce and deposit in the registry of the court the money as required. The...