Helton v. Sinclair
| Decision Date | 11 June 1927 |
| Citation | 113 So. 568,93 Fla. 1121 |
| Parties | HELTON et ux. v. SINCLAIR. |
| Court | Florida Supreme Court |
Suit by J. C. Sinclair against R. H. Helton and wife to foreclose a mortgage. From a decree for complainant, defendants appeal.
Reversed with directions.
Syllabus by the Court
Seller of personal property, retaining title, cannot retake property and bring action on debt. Where the vendor of personal property holds a conditional sales contract with the vendee in which the owner reserves the title to the personal property sold and retains the right, upon the failure of the vendee to make the stipulated payments, to retake possession of the property, the vendor cannot, after exercising his right to retake the property, continue the pursuit of the purchaser on the debt. He cannot have both the remedy of retaking possession of his property and a suit to enforce the debt for the purchase price.
Seller of personal property under contract reserving title cannot retake property and foreclose mortgage on lands securing purchase price. Where the vendor of personal property holds a conditional sales contract with the vendee, in which the vendor reserves the title to the property and retains the right, upon the failure of the vendee to make the stipulated payments, to retake possession of the property, and such contract also consists in part of a mortgage upon lands to secure the purchase price of the personal property sold, the vendor abandons his right to the fruits of a foreclosure of the lien upon the land already begun by him on the contract when, without authority of law or sanction of court procedure, he retakes possession of the personal property sold. Appeal from Circuit Court, Hardee County; George W. Whitehurst, judge.
John B. Singeltary, of Bradenton, for appellants.
W. W. Whitehurst, of Wauchula, for appellee.
J. C. Sinclair, the appellee, exhibited his bill in chancery against R. H. Helton and his wife to enforce a mortgage lien upon certain live stock and certain described lands. The bill alleges that the defendant owed the complainant $2,300 evidenced by a promissory note, the due date of which was May 1, 1920; that the defendants executed and delivered to the complainant a mortgage upon the live stock and lands to secure the payment of the debt. The note and mortgage were attached to the bill as 'Exhibit A' and made a part of it. It was alleged that the debt was not paid at maturity, that the defendants were insolvent, and that the live stock was not receiving proper treatment, and upon information and belief complainant alleged that, the live stock 'not being properly cared for, said live stock are depreciating in value.'
The bill prayed for a foreclosure of the mortgage and the appointment of a receiver to take charge of the personal property.
The note and mortgage referred to in the bill consists of one document. It is a promise to pay $2,300 on May 10, 1920. The document recites that the note was given for the purchase price of certain live stock, particularly described, the title to which was reserved by Sinclair until the purchase price therefor, together with interest, should be paid in full according to the 'legal tenor and effect of this obligation.'
The document then recites that:
Then follows a description of lands according to governmental survey. There were clauses which contained a promise to pay the debt when due, and on failure to pay it or any part 'the entire amount shall become instantly due'; that in such case Sinclair should have the right to 'retake wheresoever it may be found the said property to which the said Sinclair reserves the title, or at his or their option to foreclose his mortgage upon all of said property to collect the amount due upon this obligation.' There was also a promise to pay attorney's fees. The instrument was executed under seal by the Heltons in the presence of two witnesses and duly acknowledged before a notary public.
Helton and his wife answered the bill. They admitted the purchase of the live stock at the price alleged; that they executed the instrument described, but it was averred that the inclusion in the mortgage of the description of the personal property was not their intention; that they, defendants, could not read and they relied on the complainant's statements that the provisions of the instrument covered only the lands descrided upon which the mortgage was intended to be given to secure the price of the live stock. It is admitted that the debt was due, and denied that the live stock were not being properly cared for. The defense was made that, as the complainant had, through the appintment complainant had, through the appointment property, or caused it to be disposed of 'by and under order of the court,' the complainant could not maintain his bill to enforce the mortgage upon the land.
In behalf of Mrs. Helton the answer avered that the land was her separate statutory property; that she executed the mortgage, but that she did not do so freely and voluntarily and without fear, constraint, or apprehension from her husband; nor did she execute it separately and apart from her husband.
The cause was referred to a special master to take testimony on June 19, 1923. The bill was filed June 22, 1920; the amended answer, August of the same year.
On June 22, 1920, the same date upon which the bill was filed, the court, upon the application of the complainant, appointed a receiver to take possession of the personal property. Four days later the receiver submitted a petition to the...
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Voges v. Ward
...the parties was in keeping with the law of conditional sales, as construed by this court in the American Process Case and in Helton v. Sinclair, supra, to the effect that the seller not elect to retake possession of the property and then sue on the debt But if the contract had permitted the......
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...So.2d 444 (Fla.1965); American Process Co. v. Florida White Pressed Brick Co. (56 Fla. 116), 47 So. 942 (Fla.1908); Helton v. Sinclair (93 Fla. 1121), 113 So. 568 (Fla.1927); Voges v. Ward (98 Fla. 304), 123 So. 785 (Fla.1929); Kaufman (Kauffman) v. International Harvester Co. (153 Fla. 188......
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... ... See ... Voges v. Ward, 98 Fla. 304, 123 So. 785; Malone ... v. Meres, 91 Fla. 709, 109 So. 677; Helton v ... [114 Fla. 816] Sinclair, 93 Fla. 1121, 113 So. 568; ... American Process Co. v. Fla. White Pressed Brick ... Co., 56 Fla. 116, 47 So. 942, ... ...
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