Gollnick v. Barker

• Decision Date: 07 November 1927
• Citation: 94 Fla. 885,114 So. 527
• Court: Florida Supreme Court
• Parties: GOLLNICK et ux. v. BARKER.

114 So. 527

94 Fla. 885

GOLLNICK et ux. v. BARKER.

Florida Supreme Court, Division B.

November 7, 1927

Suit by L. W. Barker against E. M. Gollnick and wife. From a decree for the complainant, defendants appeal.

Affirmed. Appeal from Circuit Court, Indian River County; Elwyn Thomas, judge.

COUNSEL

Alto Adams, of Ft. Pierce, for appellants.

Nisle & Vocelle, of Vero, for appellee.

OPINION

PER CURIAM.

This was a suit to have a conveyance absolute on its face decreed to be in effect a mortgage, and to require the conveyance of the property to the complainant upon the payment of the debt alleged to have been secured with interest thereon. The decree was in favor of the complainant.

'Section 3836, Rev. Gen. Stat. 1920, prescribing the effect of instruments conveying property for the purpose or with the intention of securing the payment of money,' is designed to insure effectuation of the genuine intention of the parties by subordinating thereto the ostensible form in which the transaction is finally couched. Neither artifice of form nor superficial declaration of intention will successfully obscure the true nature of the transaction. Cary & Co. v. Hyer, 91, Fla. 322, 107 So. 684; Hull v. Burr, 58 Fla. 432, 50 So. 754.

While the findings and conclusions of a chancellor, where the testimony is not taken before him but before an examiner or master and the chancellor is not afforded the opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury and are not so conclusive, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous. Mock v. Thompson, 58 Fla. 477, 50 So. 673; Lucas v. Wade, 43 Fla. 419, 31 So. 231.

Affirmed.

WHITFIELD, P.J., and TERRELL and BUFORD, JJ., concur.