First Nat. Bank v. Evans

• Decision Date: 05 September 1930
• Citation: 130 So. 18,100 Fla. 740
• Parties: FIRST NAT. BANK OF BROOKSVILLE v. EVANS et al.
• Court: Florida Supreme Court

130 So. 18

100 Fla. 740

FIRST NAT. BANK OF BROOKSVILLE v. EVANS et al.

Florida Supreme Court

September 5, 1930

Commissioners' Decision.

Suit by the First National Bank of Brooksville against W. F. Evans and another. From the decree, complainant appeals.

Reversed and remanded with directions. Appeal from Circuit Court, Hernando County Fred L. Stringer, judge.

COUNSEL

Whitehurst & Whitehurst, of Brooksville, for appellant.

Altman & Morrow, of Tampa, for appellees.

OPINION

DAVIS C.

The appellant filed its bill of complaint in the circuit court of Hernando county for the foreclosure of a chattel mortgage on 16 head of mules and other personal property. The mortgage was executed on May 14, 1925, filed for record in the office of the clerk of the circuit court of Hernando county on August 14, 1925, and recorded in the public records of said county on October 3, 1925. The bill of complaint alleges among other things, a delivery to the complainant of the mortgage 'upon the following goods and chattels then in his possession custody and control in Hernando County Florida,' following which is a description of the property, and further that the mortgagor removed the said mortgaged property out of the county of Hernando without the written consent of complainant.

A decree pro confesso was entered against the mortgagor, W. F. Evans. The defendant E. E. Freeman Company filed its answer to the bill in which it is said that the defendant 'is not informed as to the matters and things set forth in the second paragraph of said bill of complaint, except as they are set forth therein, but says that on or about the 28th day of September, 1925, this defendant instituted a civil suit against the defendant, W. F. Evans in the Circuit Court, Hillsborough County, Florida, claiming the sum of Nine Hundred Sixty-six Dollars and Seventy-seven Cents ($966.77), and on said date last mentioned caused to be issued out of and under the seal of said Circuit Court of Hillsborough County, Florida, a writ of attachment against the goods and chattels, lands and tenements of the said defendant, W. F. Evans, and on or about the 3d day of October, 1925, caused the said writ of attachment to be served by B. A. Cassady, Sheriff of Lake County, Florida, on the following personal property, to wit, 13 head of Mare mules, 2 head of horse mules, said property being then and there situated in the County of Lake and State of Florida; that this defendant is not informed as to when the mortgage held by the said complainant was recorded in the office of the Clerk of the Circuit Court of Hernando County, Florida, except as alleged in said bill of complaint, but states the facts to be that said mortgage had not at the time or the levy and execution of said writ of attachment, been recorded by complainant in the office of the Clerk of the Circuit Court of Lake County, Florida, the place where said property was then located, and that by reason of the failure of the said complainant to record said chattel mortgage in Lake County, Florida, this defendant claims that its lien on said property by virtue of said attachment takes priority over the lien of the complainant under and by virtue of said chattel mortgage.'

The said second paragraph of the bill contains the excerpt which we have hereinabove quoted.

The answer further avers:

'That the property levied on under the writ of attachment of this defendant was for a long period of time situated in the County of Hillsborough, and State of Florida, and was in said County of Hillsborough, State of Florida, at the time that the cause of action of this defendant accrued against the said W. F. Evans and that subsequent to the time of the accrual of the cause of action of this defendant against the said W. F. Evans, the said W. F. Evans removed said personal property to the County of Lake, and State of Florida, where the same were attached by this defendant.'

It is stipulated in the record that the mules that were attached were included in the mortgage.

The court found that as to the defendant W. F. Evans, the equity of the cause is with complainant; and that as between complainant and the defendant E. E. Freeman Company, the equity of the cause is with said defendant E. E. Freeman Company; and that in so far as complainant seeks to foreclose its mortgage against 15 head of mules levied upon under the said execution, the said E. E. Freeman Company is entitled to priority over the mortgage; and a decree was made and entered to that effect.

It is agreed that the sole question before this court for determination is whether or not the lien of the chattel mortgage is entitled to priority over the attachment lien of the said E. E. Freeman Company.

Section 3838, Revised General Statutes of Florida 1920, (section 5726, Compiled General Laws of Florida 1927), provides as follows:

'No chattel mortgage shall be valid or effectual against creditors or subsequent purchasers for a valuable consideration and without notice unless it be recorded, or unless the property included in it be delivered to the mortgagee and continue to remain truly and bona fide in his possession;'

And chapter 7936, § 6, Acts of 1919 (section 5733, Compiled General Laws of Florida 1927), provides as follows:

'All live stock mortgages shall be entitled to record in like manner and under the same circumstances as other mortgages on personal property; and the record of such live stock mortgages in the County where such live stock or any part thereof may be situated when such mortgage is executed shall have like effect for all purposes and in respect to all parties as other mortgages on personal property.'

It is not contended by appellant that the property included in the mortgage was delivered to it or its authorized agent, or that it ever had possession of the same, or that E. E....