Davis v. Horne

• Decision Date: 04 December 1907
• Citation: 54 Fla. 563,45 So. 476
• Parties: DAVIS et al. v. HORNE.
• Court: Florida Supreme Court

45 So. 476

54 Fla. 563

DAVIS et al. v. HORNE.

Florida Supreme Court

December 4, 1907

In Banc. Appeal from Circuit Court, Suwannee County; Bascom H Palmer, Judge.

Bill by E. C. Horne against J. E. Davis and others. Decree for complainant, and defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

As against third persons a mortgage must point out its subject-matter, so that the third person may identify the property covered by the aid of such inquiries as the instrument itself suggests; but between the parties it is only necessary to identify the chattels so that the mortgagee may say with a reasonable degree of certainty what property is subject to his lien; and parol evidence is admissible to more clearly identify it.

On an appeal from orders and decrees made in an equity cause, an order, made subsequently to the entry of such appeal prescribing the amount and conditions of a supersedeas bond on such appeal, cannot be assigned as error.

COUNSEL J. B. Johnson and F. L. Rees, for appellants.

Roberson & Small, M. F. Horne, and J. L. Lee, for appellee.

OPINION

TAYLOR J.

The appellee, as complainant below, filed his bill in equity in the circuit court of Suwannee county against the appellants as defendants below, for the foreclosure of a mortgage, and therein prayed for an injunction to restrain the defendants from disposing of the properties alleged to have been mortgaged and for the appointment of a receiver for such properties. Injunction was granted as prayed, and a receiver was appointed to take charge and control of the mortgaged properties. The defendants, upon a demurrer and answer to the bill, moved for dissolution of the injunction and discharge of the receiver; but such motion was denied, and to have these rulings reviewed the defendants have appealed here.

From the allegations of the bill it appears that the defendant J E. Davis was conducting a sawmill and naval stores or turpentine business in the county of Suwannee, and, being in need of ready cash with which to pay off his labor and other pressing demands, obtained advancements of cash from the complainant; and to secure the payment thereof he, the said J. E. Davis, with his wife, L. M. Davis, executed to the complainant the mortgage sought to be foreclosed herein. The properties included in this mortgage are therein described as follows: 'The parties of the first part [the defendants J. E. and L. M. Davis], in order to secure the payment of any and all amounts of money, on demand, that may be now due and owing by the parties of the first part, or either of them, to the party of the second part, or that may hereafter become due or owing by the parties of the first part, or either of them, to the party of the second part for labor, money advances, and for value received, does hereby grant, bargain, sell, convey, and mortgage unto the party of the second part, and to his heirs and assigns, forever, in fee simple, all the following described property, situate, lying, and being in Suwannee county, Florida, to wit: All the real estate and timber or timber interest, of whatsoever nature, kind, or description, that is owned by the parties of the first part, or either of them; also all and singular the personal property that is owned by the parties of the first part, or either of them, including all of the sawmill interest, machinery, timber, and teams of the parties of the first part, or either of them, and also the entire gin interest and property of the parties of the first part, or either of them; also all of the entire farm and farm products, farm stock, and growing crops of the parties of the first part, or either of...