Hudnall v. Paine

• Decision Date: 17 February 1897
• Citation: 39 Fla. 67,21 So. 791
• Parties: HUDNALL v. PAINE.
• Court: Florida Supreme Court

21 So. 791

39 Fla. 67

HUDNALL v. PAINE.

Florida Supreme Court

February 17, 1897

Appeal fromt circuit court Duval county; W. B. Young, Judge.

Action by Eliza Hudnall against Florence Keep. John B. Paine, doing business as Merryday & Paine, claimed the property distrained. From a verdict for claimant, plaintiff appeals. Reyersed.

Syllabus by the Court

SYLLABUS

1. The fourth section of the act of 1823, as amended by the act of January 7, 1859 (McClel. Dig. p. 212, s 4; Rev. St. s 1994) was intended to suppress frauds and perjuries, and should be interpreted in advancement of the ends intended to be accomplished.

2. A conditional sale of personal property, by which the title is reserved in the seller until the purchase money is paid, is embraced within the statute mentioned in the preceding headnote, and will be void as to creditors and purchasers for a valuable consideration after the expiration of two years' possession on the part of the purchaser, unless such sale be declared in writing, and recorded as provided by the statute.

COUNSEL

Walker & L'Engle, for appellant.

Fletcher & Wurts, for appellee.

On the 13th day of October, 1890, an affidavit in behalf of appellant, Eliza Hudnall, was filed with the clerk of the circuit court of Duval county, in which it is alleged that Florence Keep was indebted to her, Eliza Hudnall, in the sum of $295.75, for the rent of a certain described room in a building in the city of Jacksonville belonging to her, and that said rent was due and payable in money, being the balance due for the period of time from November, 1886, to and including the 15th day of October 1890, and according to contract at the rate of $15 per month rent. A distress warrant was issued and levied by the sheriff upon a piano in possession of Paine, appellee, and released to him upon his executing and delivering to the sheriff a claim bond under the statute. Paine made affidavit that he was owner of the piano levied on by sheriff, in the suit of Eliza Hudnall against Florence Keep, and that it was of the value of $200. A trial was had on the claimant's issue and he obtained a verdict and judgment, from which this appeal was entered, under the former statute authorizing appeals in proceedings at law.

To maintain his contention, claimant offered in evidence the following instrument in writing, after proving its execution, viz.: 'Jacksonville, Fla., Jan. 20th, 1887. This certifies that I, Florence Keep, now residing at Jacksonville, Fla., have received from Merryday & Paine, of Jacksonville, Florida, one Briggs upright piano, style 'A,' No. 8,113, with stool and cover, which I agree to use with care, keep in good order, and keep it insured for $275, loss, if any, payable to said Merryday & Paine; and I have agreed to purchase the same on the following conditions and terms: Twenty-five dollars on signing this agreement, and ten dollars per month for the space of twenty-five months following the date hereof, and for which monthly payments I have given twenty-five notes of ten dollars each; said notes bearing interest after due until paid, at the rate of ten per cent. per annum, all payable at the office of Merryday & Paine, without cost to them. It is expressly agreed by me that all right of ownership in and control of said instrument remains in said Merryday & Paine, and shall so remain until I shall have made payment in full therefor as above agreed. It is further expressly agreed by me that, if default shall be made in either of said payments, the said Merryday & Paine shall have full liberty, at their option, to resume possession of their said property. Witness my hand, this 20th day of January, 1887,'--and was signed and sealed by Florence Keep. Counsel for Mrs. Hudnall objected to the introduction of this instrument of writing in evidence, because it contained a reservation of the title to the property therein named, and had never been recorded as required by law. The objection was overruled, exception duly noted, and the paper read to the jury. Claimant proved that Florence Keep had not finished paying the amount due upon the piano, and that there were several installments of purchase money mentioned in the contract still due and unpaid. It also appeared upon cross-examination of Florence Keep, who was examined by claimant, that she took possession of the piano about January 20, 1887, placed it in the room occupied by her, belonging to Mrs. Eliza Hudnall, and that the piano remained there until, as the witness says, 'the 11th day of October, A. D. 1890, or rather Sunday morning, the 12th day of October, A. D. 1890,' when claimant, with his men, went to the room, and took it away. Counsel for Mrs. Hudnall moved to exclude from the jury the written instrument, on the ground that it had never been recorded, and the proof showed the piano had remained in the possession of Florence Keep, the person to whom it had been delivered by claimant, from the 20th of January, 1887, until the 12th day of October, 1890, and that as to Mrs. Hudnall, a creditor, the piano was the absolute property of Florence Keep, under Act 823, § 4 (McClel. Dig. p. 212). This motion was denied by the court, and exception noted. Claimant further proved by Florence Keep that, during the time she was a tenant of Mrs. Hudnall, she notified the latter of the fact that the piano had not been paid for, and therefore belonged to claimant. Mrs. Hudnall denied that she had been so notified. It further affeared from the statement of Paine himself that he had heard Florence Keep was indebted to Mrs. Hudnall for rent, and that he moved the piano, at Florence Keep's request, after night. It was moved near midnight.

The case was submitted to the jury by the court on the theory that if the piano in question was purchased by Florence Keep under the written instrument offered in evidence, and that it had not been paid for at the time it was seized under the distress warrant, and Mrs. Hudnall was informed of these facts, the claimant was entitled to recover.

OPINION

MABRY, J. (after stating the facts).

The 4th section of the act of 1823 (page 212, McClel. Dig., and section 1994, Rev. St.) provides 'that where any loan of goods and chattels shall be pretended to have been made to any person with whom, or those claiming under him, possession shall have remained for the space of five years, without demand made and pursued by due process of law, on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of a use or property by way of condition, reservation, remainder or otherwise, in goods and chattels, the possession whereof shall have remained in another, as aforesaid, the same shall be taken as to the creditors and purchasers, of the persons aforesaid, so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possessor, unless such loan, reservation or limitation, of use or property, were declared by will or deed in writing, proved and recorded as aforesaid.' This section was amended by the act of January 7, 1859, so that the space of five years be changed and limited to two years.

The above statutory provision, though of long standing in this state, has not, so far as we find, been construed by this court. In Manufacturing Co. v. Walker, 22 Fla. 412 1 So. 59, it is said it would seem that an instrument, construed to be a conditional sale of personal property, when not recorded,...