Hull v. Burr

• Decision Date: 16 November 1909
• Citation: 50 So. 754,58 Fla. 475
• Parties: HULL et al. v. BURR.
• Court: Florida Supreme Court

50 So. 754

58 Fla. 475

HULL et al. v. BURR.

Florida Supreme Court

November 16, 1909

On Rehearing, December 21, 1909.

In Banc. Appeal from Circuit Court, Polk County; J. B. Wall Judge.

Action by Arthur E. Burr, as trustee in bankruptcy of the Port Tampa Phosphate Company, against Joseph Hull and others. From an interlocutory decree overruling demurrers to the bill defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

Section 2494 of the General Statutes of 1906, providing that 'all deeds of conveyance, obligations conditioned or defeasible bills of sale or other instruments of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money, whether such instrument be from the debtor to the creditor or from the debtor to some third person in trust for the creditor shall be deemed and held mortgages, and shall be subject to the same rules of foreclosure and to the same regulations, restraints, and forms as are prescribed in relation to mortgages,' is quite comprehensive in its scope, and should be liberally construed in order to carry out the legislative intent.

An instrument must be deemed and held a mortgage, whatever may be its form, if, taken alone or in connection with the surrounding facts and attendant circumstances, it appears to have been given for the purpose or with the intention of securing the payment of money; and the mere absence of terms of defeasance cannot determine whether it is a mortgage or not.

In construing any written instrument, whether a deed of conveyance, a bill of sale, mortgage, contract, or what not, the entire instrument must be considered in order to gather the real intent and to determine the true design of the makers thereof. To that end all the different provisions of such instrument must be looked to and all construed so as to give effect to each and every of them, if that can reasonably

Courts of equity in pursuance of a wise and benign rule in cases of doubt as to whether the parties intended the transaction to be an absolute deed of conveyance or bill of sale, conditional sale, or a mortgage will deem and hold the transaction and instrument to constitute a mortgage.

On Rehearing.

A petition for a rehearing in this court which suggests nothing in the case as presented that has not been fully considered by the court in making its decision will be denied; the proper function of a petition for a rehearing here being to present to the court some point which it overlooked or failed to consider, by reason whereof its judgment is supposed to be erroneous.

Any indefinite or uncertain allegations that may appear in a bill of complaint should be taken most strongly against the pleader.

Under the statutes of this state, a mortgagee acquires only a specific lien on the property of another described in the mortgage, and an 'instrument of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money,' may upon its face convey title to property, subject to the provisions of the statute that it 'shall be deemed and held a mortgage,' if by extrinsic facts the statute is shown to apply.

COUNSEL

Bisbee & Bedell and Wilson & Swearingen, for appellants.

Glen & Himes and E. R. Gunby, for appellee.

On the 26th day of March, 1908, the appellee, as complainant, filed his original bill against the appellants as defendants. A demurrer was interposed to such bill, upon which the trial court made the following order: 'The demurrer to the bill assigns a number of grounds which are not tenable, among them that there is no averment of a distinct agreement between the Port Tampa Phosphate Company and Hull; that the deed to the latter from Stuart and Meminger should operate as a mortgage. While this is true, there is an averment of a loan and the taking of the deed as security for its payment. This is sufficient to constitute the deed a mortgage. Nor, under the case stated, was it necessary to aver a tender; but, as there is no positive and definite allegation as to the amount of money made by the present holder of the property, over and above Hull's claims against it, but only an assumption there should be in the bill an offer to pay the defendants any sum or sums of money which may be ascertained to be due them, or either of them on an accounting, that is due them from the bankrupt estate. The demurrer will be sustained on that ground, and overruled on all the others. The complainant will have leave to amend his bill, and the defendants be allowed 60 days after notice of the amendment in which to answer or plead.'

On the 14th day of September, 1908, the complainant filed his amended bill, which, with the exhibit attached thereto, is as follows, omitting the purely formal parts:

'Your orator, Arthur E. Burr, as trustee in bankruptcy of the estate of the Port Tampa Phosphate Company, a corporation, brings this, his bill of complaint, against Joseph Hull, the Prairie Pebble Phosphate Company, a corporation, and Savannah Trust Company, a corporation, and thereupon your orator complains and syas:

'First. That heretofore, to wit, on the 19th day of November, A. D. 1904, one Clarence A. Boswell, of Polk county, Fla., made and entered into a certain contract with one Hiram W. Rowell, whereby the said Clarence A. Boswell agreed to sell to the said Hiram W. Rowell, and the said Hiram W. Rowell agreed to purchase from the said Clarence A. Boswell, the following described premises, lying, being, and situate in Polk county, Fla., to wit: The S. 1/2, and the S. 1/2 of the N.E. 1/4, and the S.E. 1/4 of the N.W. 1/4 of section thirty-four (34), in township twenty-nine (29) S., range twenty-three (23) E., containing in all four hundred and forty (440) acres, more or less, subject to a right of way for a railroad track across said land according to the terms of an agreement of even date therewith, together with the buildings situate thereon, consisting of three storehouses, one mill building, eleven dwelling houses, and one commissary and office building. Also the following personal property located upon said premises and described as follows: One drier, three (3) stationary engines, six boilers, five force pumps, one lot of tools, one Worthington pump 6×9×10, one feed and service pump 3 suction and 4"' discharge, all elevator chains and buckets, two rock cars, twelve hundred feet steel rails, all pulleys, shaftings, sprockets, wheels, rotary, and wrinsing screens, débris, hoppers, one Cameron pump No. 10, one Cameron pump 18 ×9×20, one Cameron pump No. 15564 6"' discharge and 6"' suction, one lot of boiler tubes, all iron and galvanized pipe, all pipe fittings, gears, pulleys, valve and valve fittings, one lot of box and post hangers, two vertical marine engines, one Moran joint, and all other personal property including office furniture and fixtures.

'Second. That thereafter, to wit, on December 6, A. D. 1904, the said Hiram W. Rowell, for a valuable consideration, assigned and transferred the said contract, together with all of his right, title, and interest in and to the premises therein described, to the Port Tampa Phosphate Company, a corporation, and the said Port Tampa Phosphate Company immediately entered into possession of the said premises described in the said contract, and became the equitable owner thereof, subject to the payment to the said Clarence A. Boswell of an unpaid balance of the purchase price, amounting to approximately $12,000.

'Third. That the said premises so embraced in the said contract assigned by the said Hiram W. Rowell to the said Port Tampa Phosphate Company were acquired by it for the purpose of carrying out the objects for which the said corporation was incorporated, viz., the establishment and operation of a phosphate plant, and the said premises of which the said Port Tampa Phosphate Company became the equitable owner as aforesaid, subject to the payment of the unpaid balance of the purchase price to the said Clarence A. Boswell, constituting the entire plant and property then or thereafter acquired by the said Port Tampa Phosphate Company for the purpose of carrying out the aforesaid purpose for which it was incorporated, and the assignment of his rights under the aforesaid contract with the said Clarence A. Boswell by the said Hiram W. Rowell was made to the said Port Tampa Phosphate Company in consideration of certain stock of the said corporation issued to him as an equivalent for the rights so transferred to the said corporation.

'Fourth. That immediately upon the transfer by the said Hiram W. Rowell to the said Port Tampa Phosphate Company of his rights under the aforesaid contract with the said Clarence A. Boswell, and his rights in and to the premises therein mentioned and described, the said Port Tampa Phosphate Company entered into possession of the said premises, and proceeded to complete and extend the phosphate plant which had been partially constructed thereon, preparatory to commencing mining operations when the same should be fully completed, so as to carry out the object for which the said Port Tampa Phosphate Company was incorporated, and, in making the said improvements and completing and extending of said plant, the said Port Tampa Phosphate Company expended a large sum of money on the said premises, to wit, upwards of the sum of $60,000.

'Fifth. That thereafter, to wit, on the 27th day of May, A. D. 1905, the said Port Tampa Phosphate Company, being pressed for payment by E. C. Stuart and C. G. Meminger, to whom the said Clarence A. Boswell had assigned his rights under the aforesaid contract, upon which there was then due an unpaid balance amounting to upwards of the sum of

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