Ellis v. Fairbanks

• Citation: 21 So. 107,38 Fla. 257
• Parties: ELLIS et al. v. FAIRBANKS.
• Decision Date: 04 January 1897
• Court: United States State Supreme Court of Florida

21 So. 107

38 Fla. 257

ELLIS et al. v. FAIRBANKS.

Florida Supreme Court

January 4, 1897

Appeal from circuit court, Alachua county; J. J. Finley, Judge.

Bill by George R. Fairbanks against Thomas B. Ellis, Edward M L'Engle, and others. On defendant L'Engle's death, Fannie W. L'Engle, executrix, was substituted. From a judgment for plaintiff, the executrix appeals separately. Reversed.

Syllabus by the Court

SYLLABUS

1. Where lands are mortgaged to secure a debt, and a part of said lands are subsequently sold and conveyed by the mortgagor, the portion remaining unsold is primarily liable under the mortgage. A release subsequently given by the mortgagee to the mortgagor of the part unsold, without the assent or agreement of the purchaser, will not prejudice the rights of such purchaser of the part which was sold, if the mortgagee gave such release with knowledge of the rights and equities of the purchaser. If the part released is sufficient to satisfy the entire debt, the mortgagee cannot resort to the part which has been sold, but such release operates as a discharge of the lien to the extent of the value of the land released.

2. The fact that the remedy at law is barred by the statute of limitations upon promissory notes secured by a mortgage under seal does not affect the lien of the mortgage. Such lien is only affected by the longer term which, by the statute, is applied to sealed instruments. The lien of such mortgage can be enforced, not only as between the mortgagor and mortgagee but also as to purchasers of the mortgaged land from the mortgagor.

COUNSEL Cooper & Cooper, for appellant.

W. W Hampton, for appellee.

OPINION

LIDDON, J.

This case is the separate appeal of Fannie W. L'Engle, as executrix of Edward M. L'Engle, deceased, from an interlocutory order sustaining exceptions to a separate answer, filed by her testator, and adopted by her, in a chancery suit to foreclose a mortgage, in which the appellee was complainant, and the appellant and others were defendants. The title of the case, as above stated, is its title as adopted by the parties, and as set forth in the calendar of the court. Proceedings in summons and severance have been had in the case, but whether any necessity existed for such proceedings it is useless to say. The other parties not being before the court at all, the title of this case should be 'Fannie W. L'Engle, as Executrix Appellant, vs. George R. Fairbanks, Appellee.'

So much of the facts of the case as are necessary to be stated in order to dispose of the controversy between the present parties, very much condensed in statement, are as follows Fairbanks, the appellee, who, for greater convenience, is hereinafter called the 'complainant,' alleged in his bill of complaint, filed September 24, 1889, the execution of a mortgage by one T. B. Ellis, who was made a party defendant, to the complainant, upon certain tracts of land situated in Alachua county, Fla. Said mortgage was executed February 20, 1875, and was duly recorded March 11, 1875. It was given to secure the payment of four promissory notes, of even date with the mortgage, each for the sum of $600, and becoming due and payable, respectively, on the 1st day in January of each of the years of 1876, 1877, 1878, and 1879, but bore interest from date, and were executed by said T. B. Ellis jointly and severally with one T. B. Ellis. All of these notes were paid in full except the one last due, which was partially paid. The bill alleged that this last note was past due and unpaid. The bill further alleged that on December 14, 1876, T. B. Ellis, the mortgagor, sold and conveyed a portion of the mortgaged land to one Edwin W. L'Engle, and that said deed was duly recorded; that, at the time of said purchase, the said Edwin W. L'Engle, the purchaser, had full, actual, and constructive knowledge of the existence and record of said mortgage, and bought the property subject to the lien of the same. The same property so conveyed to the said Edwin W. L'Engle was by him, in October, 1883, conveyed to Edward M. L'Engle, the testator of the appellant, and who was made a party defendant to the bill of complaint. After the purchase by Edwin W. L'Engle, and preceding his sale to Edward M. L'Engle, on February 20, 1880, the complainant, for a good and valuable consideration, executed and delivered to the mortgagor, Thomas B. Ellis, a written release under seal, whereby he released from the lien of said mortgage all the property embraced therein, except that which had been previously sold and conveyed by said mortgagor and his grantee to the testator, Edward M. L'Engle, as stated, which was specially described and excepted from such release. The said Edward M. L'Engle is alleged to have had full, actual, and constructive knowledge of the existence and record of both the mortgage and the said release before he purchased said land from Edwin W. L'Engle. The said Edwin W. L'Engle, it is alleged, advised with and encouraged the mortgagor, Thomas B. Ellis, to obtain the partial release before mentioned. The bill claimed that the land excepted in the partial release of the mortgage was subject to the lien of the mortgage, and prayed, as against the testator of appellant, for foreclosure and sale of the same for the balance due upon the mortgage debt.

The answer of the said Edward M. L'Engle admitted the material allegations of the bill of complaint. Greatly condensed, its further allegations are to the effect that the lands which had been released by the complainant to the mortgagor, Thomas B. Ellis, were of greater value than the amount remaining due upon the mortgage debt at the time the release was made, and were, at the time of the making of the mortgage, and at all times since, up to the time of the filing of the answer, far greater in value than the whole original amount of the mortgage debt. The answer further alleged that, at the time of the execution of said release and long before said time, the complainant had notice and knowledge, both actual and constructive, of the conveyance by the mortgagor, Thomas B. Ellis, to said Edwin W. L'Engle, and of the lands which were included in the same, and that complainant, at said time and before, had notice of other sales and conveyances made by said Ellis sufficient to put him upon inquiry. The answer also alleged that complainant had failed to pursue his remedy upon the promissory notes against the makers thereof, both of whom were solvent, and from whom the debt could have been collected, until said notes had become barred by the statute of...