Elliott v. Connor
| Decision Date | 12 March 1912 |
| Citation | 63 Fla. 408,58 So. 241 |
| Parties | ELLIOTT et al. v. CONNOR. |
| Court | Florida Supreme Court |
Rehearing Denied April 23, 1912.
Appeal from Circuit Court, Marion County; W. S. Bullock, Judge.
Bill in equity by Rubie C. Connor, by her next friend, J. D. Young against J. M. Elliott, Jr., and another. From a finding by the Chancellor for complainant, defendants appeal. Affirmed.
Syllabus by the Court
Under the statutes of this state, a mortgagee acquires only a specific lien upon the property of the mortgagor that is covered by 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, which upon its face conveys title to property, may be 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; and in cases of doubt the instrument may, when justice requires it, be held to be in law a mortgage.
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.
If when an absolute conveyance of property is made, it is in legal effect a mortgage, it remains a mortgage.
Where a conveyance of property is absolute on its face, the burden of showing that it was, when executed, intended to be a mortgage to secure the payment of money is upon the grantor.
The conduct of the parties and the circumstances under which the instrument was executed may be shown in evidence as bearing upon the intent and purpose of the parties to the transaction. The mere secret intention of either party as to the purpose of the instrument will not control.
If from all the facts and circumstances of the case, it appears that the real purpose of the parties to an absolute conveyance of property was to secure the payment of money then due, and not the actual extinguishment of the debt, the conveyance will be regarded as a mortgage. In such a case, the mortgagee may foreclose, or the mortgagor may redeem.
When an unascertained debt exists which is not clearly extinguished, and the value of property conveyed is considerably greater than the probable total debt, and there is evidence that the grantor intended a conveyance to be merely a security for the debt, and the attending circumstances were such that the grantee must have understood the conveyance was intended by the grantor as security for the debt, the instrument may be held a mortgage, especially when by so doing justice to both parties will be best subserved.
Where lands of the wife that had been conveyed by her are sought to be redeemed by her upon allegations that the conveyance was intended to be a mortgage, the intent with which the instrument of conveyance was executed by the grantor and received by the grantee should be ascertained, and must control in adjudicating the rights of the parties.
While competent parties should be held to the consequences of acts deliberately taken by them, such as the execution of deeds affecting the title to real estate, yet the circumstances of the parties and the conditions under which deeds are executed should be considered in determining the effect the parties intended the deeds to have under the laws of the state where the lands are located.
Where, in order to relieve her husband of embarrassment, a married woman executes to her husband's creditor a conveyance of her separate property to secure the payment of the husband's indebtedness, and the circumstances are such that the creditor must have known that was the purpose of the wife, the conveyance will be held to be a mortgage; and the property may be redeemed by the wife upon the payment of the indebtedness.
COUNSEL Hampton & Hampton, of Gainesville, and Blount & Blount & Carter, of Pensacola, for appellants.
Hocker & Duval, of Ocala, for appellee.
A bill was filed March 31, 1909, by the appellee against the appellants to redeem lands of Mrs. Rubie C. Connor, in the state of Florida, alleged to have been conveyed by her and her husband to J. M. Elliott, Jr., for the purpose of securing an indebtedness of Claude E. Connor, husband of Rubie C. Connor, to J. M. Elliott, Jr. An order sustaining a demurrer to the bill of complaint as amended was reversed. Connor v. Connor, 59 Fla. 467, 52 So. 727. When the cause was finally heard on the pleadings and evidence, the chancellor filed, in writing, his findings that the equities of the cause are with the complainant, and that the cause would be referred to a competent master to state an account between C. E. Connor and J. M. Elliott, Jr. An appeal was taken from this finding, which is apparently regarded by all parties as a decree.
The question to be determined is whether, on the evidence and under the statutes of this state, the conveyance of the property is in fact and in law merely a mortgage to secure the payment of money.
Sections 2494 and 2495 of the General Statutes are as follows:
Under these statutes, a mortgagee acquires only a specific lien upon the property of the mortgager that is covered by 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,' which, upon its face, conveys title to property, may be 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; and in cases of doubt the instrument may, when justice requires it, be held to be in law a mortgage. 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. Hull v. Burr, 58 Fla. 432, 50 So. 754; De Bartlett v. De Wilson, 52 Fla. 497, 42 So. 189; Connor v. Connor, 59 Fla. 467, 52 So. 727.
An absolute conveyance of property is in equity a mortgage, if, when made, it was intended by the parties to be a security for the payment of money. If, when an absolute conveyance of property is made, it is in legal effect a mortgage, it remains a mortgage. Where a conveyance of property is absolute on its face, the burden of showing that it was, when executed, intended to be a mortgage to secure the payment of money is upon the grantor. The conduct of the parties and the circumstances under which the instrument was executed may be shown in evidence as bearing upon the intent and purpose of the parties to the transaction. The mere secret intention of either party as to the purpose of the instrument will not control. But if, from all the facts and circumstances of the case, it appears that the real purpose of the parties to an absolute conveyance of property was to secure the payment of money then due, and not the actual extinguishment of the debt, the conveyance will be regarded as a mortgage. In such a case, the mortgagee may foreclose or the mortgagor may redeem. Where there is an existing debt which is not certainly extinguished by an absolute conveyance of property, and the amount of the debt is not fully known or ascertained, and the value of the property, when conveyed, was considerably greater than the probable total indebtedness would be when definitely ascertained, and there is evidence that the grantor intended the conveyance as a security for the debt, and not as an absolute sale, and there was no proposition for the sale of the property, but the attending circumstances were such that the grantee must have understood the conveyance was intended by the grantor as security for the debt, the instrument may be held a mortgage, especially when by so doing justice to both parties will be best subserved. See 1 Jones on Mortgages (6th Ed.) § 265 et seq.
Where lands of the wife that had been conveyed by her are sought to be redeemed by her upon allegations that the conveyance was intended to be a mortgage, the intent with which the instrument of conveyance...
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