Garrett v. Fernauld

• Decision Date: 06 February 1912
• Citation: 57 So. 671,63 Fla. 434
• Parties: GARRETT v. FERNAULD.
• Court: Florida Supreme Court

57 So. 671

63 Fla. 434

GARRETT v. FERNAULD.

Florida Supreme Court

February 6, 1912

Appeal from Circuit Court, Escambia County; J. Emmett Wolfe, Judge.

Bill by E. A. Fernauld against J. R. Garrett. Decree for complainant and defendant appeals. Affirmed.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

Where B. executes to W. a note and a mortgage upon land to secure its payment, and W. assigns the note and mortgage before maturity to F., and B. thereafter conveys the land to G., who pays W. the balance he claims to be due on the note, but does not procure the surrender or cancellation of the note, G cannot assert his payment to W. in defense of a foreclosure suit by F., who is the holder of the note and mortgage, there being no evidence that W. was authorized by F. to receive the payment made to him by G., or that W. was authorized to cancel the mortgage of record as he did after the conveyance from B. to G. In such a case the loss to G. results from his own failure to have the note surrendered or to ascertain its real owner.

COUNSEL Jones & Pasco, for appellant.

Reeves & Watson, for appellee.

OPINION

WHITFIELD C.J.

This appeal is from a decree in a foreclosure proceeding. It appears that in June, 1907, L. C. Bannerman executed his note for $1,000 payable two years after date to the order of D Hale Wilson, with interest at the rate of 8 per cent. per annum from date until paid; that a mortgage on certain land was given to secure the payment of the note; that the mortgage was duly recorded June 17, 1907; that thereafter during the year 1908, before the maturity of the note, the said D. Hale Wilson, for a valuable consideration, indorsed the note to E. A. Fernauld, and executed to her an assignment of the said mortgage; that on July 16, 1909, Bannerman and wife conveyed the land to Joseph R. Garrett; that the assignment of the mortgage by Wilson to Fernauld was never recorded; that, after the assignment of the note and mortgage by Wilson to Fernauld, the said Wilson, without the knowledge and consent of Fernauld and without authority from Fernauld, on October 2, 1909, canceled the mortgage of record; that, when Bannerman conveyed to Garrett, he then on July 16, 1909, paid to Wilson what he, Wilson, said was the balance due on the note, but the note was not surrendered, and Wilson thereupon promised to cancel the mortgage, which he did in fact do on October 2, 1909; that the interest on the note was paid to some time in 1910, and the principal of the note had not been paid to Fernauld, the assignee of the note and mortgage, when foreclosure proceedings were begun. Garrett, the purchaser of the land from Bannerman, resists the foreclosure decree upon the theory that he paid to Wilson, the original mortgage, the balance due on the past due note when he purchased the property, and, as he had no actual or constructive notice that the note and mortgage had been assigned, he took his title from Bannerman discharged of the mortgage lien. The complainant, appellee here, in whose favor the foreclosure decree was rendered, insists that the decree is proper because the assignment of the mortgage was not by statute required to be recorded and...