Edwards v. Thom

• Decision Date: 26 February 1889
• Citation: 5 So. 707,26 Fla. 433
• Parties: EDWARDS v. THOM.
• Court: Florida Supreme Court

5 So. 707

26 Fla. 433

EDWARDS v. THOM.

Florida Supreme Court

February 26, 1889

Appeal from circuit court, Alachua county; THOMAS F. KING, Judge.

Syllabus by the Court

SYLLABUS

Proof by a subscribing witness to a mortgage that he saw the mortgagor sign the instrument, and acknowledge that he did so, is not sufficient proof of its execution to authorize its admission to record.

The record of a mortgage made upon insufficient proof of its execution does not constitute notice of the mortgage to a subsequent bona fide mortgagee for value.

A notary public can take proof of the execution of a mortgage of real estate for record.

A bona fide mortgagee who has been made a party defendant with the mortgagor to a bill filed to foreclose a duly-recorded prior mortgage, and has become the purchaser at the sale made under the decree in such suit, is entitled to priority of payment out of the excess of the proceeds of sale, as against a mortgage executed before his, but not legally recorded, and of which he had no notice when he took his own mortgage.

If a person holding a first mortgage surrenders it, and the promissory note it secures, to a subsequent owner of the land mortgaged, and takes from such owner a mortgage securing both the sum he paid for an assignment of the former mortgage and note and sums of money which he has advanced to such subsequent owner, and the latter has the record of the mortgage canceled, and delivers the note to the party making it and the first mortgage, such first mortgage will be held to be satisfied as to a subsequent mortgagee for value, and without notice, actual or constructive, of the second mortgage.

When a decree is so framed as to cover certain charges made by the bill and put in issue by the other pleadings, but not sustained by the testimony, it should be so modified as to make it cover only the issues sustained by the testimony, if it seems that such modification may, under some circumstances, be essential or material to defendant.

COUNSEL

J. H. Goss and Ashby, Scott &amp Thrasher, for appellant.

Hampton & Hampton, for appellee. Appellee filed his bill in equity in Alachua county circuit court, April 14, 1884, against F. L. Selden and his wife, Matilda L., and William Edwards, and J. A Carlisle, clerk of the circuit court of said county, alleging:

That by deed dated December 30, 1881, and duly recorded in the said county, Albert P. Acee and his wife, Anna P., conveyed to said F. L. Selden certain lands therein described, situate in said county; and that subsequently, by an indenture made January 10, 1882, and also duly recorded in the proper record book of the county, Selden and wife mortgaged the same land to secure a promissory note of said mortgagors of the same date, in the sum of $3,150, it being part of the purchase price of the lands. That in February, 1882, appellee loaned to Selden sums of money aggregating $3,500, upon the express promise of Selden that he would pay off the said indebtedness to Acee, and procure a release of his mortgage and also pay and procure releases of all other liens and incumbrances affecting the property, and would thereupon execute and cause to be executed to appellee such deeds and assurances as would give him a first lien by way of mortgage upon said property as security for said $3,500. That Selden delayed and put off from time to time the performance of his promise, until finally, on February 23, 1883, after much correspondence, and repeated remonstrances and demands, appellee received through the mails a letter from Selden, dated Gainesville, Fla., February 19, 1883, inclosing a promissory note for $3,500, without date, signed by Selden and his wife, and payable to appellee, and also an instrument of mortgage on the said lands and premises, executed and acknowledged by them, but not recorded, and purporting to be a second mortgage on the property, subordinate to that made to Acee. That although this mortgage, it not being a first mortgage, did not conform to the agreement existing between appellee and Selden, the former was, under the circumstances, compelled to accept from Selden the best security then available; but inasmuch as the said promissory note bore no date whatever, and the date of the mortgage was illegible as to the year, appellee sent them back to Selden to be reformed, and procured from him a new note made by the same parties, and dated March 14, 1883, of the same amount, bearing interest from March 1, 1882; and also a new mortgage of same date, upon the same property, and duly recorded on the 15th of March, 1883, and likewise professing to be subordinate only to the Acee mortgage. Copies of said two notes and mortgages are annexed as part of the bill.

That Edwards, the father of Mrs. Selden, was, during all the above-mentioned transactions, the attorney and counsellor of Selden, and knew that appellee had made the said advances of money upon the faith of the said representations and undertakings of Selden to give him a first lien on said lands as security for the payment of said advances, but, as appellee is informed and believes, Edwards, well knowing the same, fraudulently and in collusion with Selden, and without the knowledge of appellee, procured from Selden an instrument dated October 12, 1882, purporting to be a mortgage of said lands, and to secure the payment of a joint note of Selden and his wife for $1,585.96; the said mortgage being recorded on October 29, 1882. That the consideration of this note and mortgage was not bona fide, but they were made and given to Edwards without any valuable consideration whatever for the same. That complainant, the appellee, had, at the time he took his said note and

J. H. Goss and Ashby, Scott & Thrasher, for appellant.

Hampton & Hampton, for appellee. mortgage above described from Selden and wife, no knowledge, either legal or constructive, of the existence of the mortgage made to Edwards.

That on July 6, 1883, Acee filed his bill in the circuit court aforesaid, against Selden and wife, to foreclose his mortgage, his note being then due, and only $201.50 having been paid on it. That Acee died in 1883, and Anna P. Acee, his widow, and executrix of his last will and testament, was duly made complainant in the cause. That on February 4, 1884, appellee was upon his own petition allowed by an order made in the cause to appear therein, and defend the same, and on the same day he filed his answer, admitting the charges in the bill, and consenting that a decree be made for the sale of the lands and premises as therein prayed for, and setting forth Selden's indebtedness and mortgage of March 14, 1883, and praying, in the event of any sale being made, the surplus proceeds of the sale, if any, remaining after the satisfaction of Acee's claim, should be applied, as far as the same should be sufficient therefor, to the satisfaction of appellee's said claim. That on February 9, 1884, the executrix obtained a final decree in said cause, and it was provided by said decree that the overplus arising from the sale should be paid into the registry of the court until the further order of the court.

That Edwards, knowing of the existence of Acee's suit, having conferred with Acee's solicitor, and having obligated himself to satisfy said decree, yet afterwards refusing and neglecting to do so, and, the decree remaining unpaid, the sheriff of Alachua county levied upon and upon due advertisement sold the mortgaged premises at public outcry, at Gainesville, and the appellee became the purchaser, he being the highest bidder, at $8,000, which he has since paid, and the sheriff made him a deed to the property. That the sheriff paid the solicitor of the executrix the full amount of her decree and costs, and deposited the residue of the money, viz., $4,293.70, with J. A. Carlisle, clerk, register of the court, pursuant to the said decree, and where such residue now is.

The prayer of the bill is, inter alia, for an account of the amount due complainant by Selden; for a decree that the lien of complainant's mortgage upon said premises was subordinate only to Acee's; and that complainant is entitled to precedence over the pretended mortgage of Edwards; and that the latter may be canceled as to any lien it may be or may have been on said premises; that complainant's mortgage debt, interest, costs, and attorney's fees may be paid out of said surplus in the registry of the court.

Edwards answered the bill. He admits its allegations as to the deed from Acee and wife to Selden, and the mortgage back to Acee, but denies that Mrs. Selden joined in the mortgage. He also denies any knowledge of the other matters alleged in the above first paragraph of the bill, and says that he does not know whether any such allegations are true, further than he learns the same from the bill and exhibits, and that as to them he knows nothing absolutely of his own knowledge, and that all he has learned or heard in regard to them is that some time in the latter part of 1883 or first part of 1884 he learned that there was a mortgage on record in Alachua county records from Selden and his wife of the character alleged in the bill, and dated March 14, 1883, and that he was astonished to learn of the existence of the same, and of said indebtedness, and that he never heard of the other allegations denied or referred to until he read complainant's bill.

He admits being the father of Mrs. Selden, as alleged in the second paragraph of the bill, but denies all other allegations of said paragraph. He avers the facts as to his mortgage to be that on or about April 1, 1881, when defendant supposed and believed the only lien upon said mortgage property to be the mortgage to Acee, and that the only indebtedness from Selden...