Lee v. Bank of Georgia

• Decision Date: 30 September 1947
• Citation: 32 So.2d 7,159 Fla. 481
• Parties: LEE et al. v. BANK OF GEORGIA.
• Court: Florida Supreme Court

32 So.2d 7

159 Fla. 481

LEE et al. v. BANK OF GEORGIA.

Florida Supreme Court

September 30, 1947

Rehearing Denied Oct. 25, 1947.

Appeal from Circuit Court, Duval County; Miles W. Lewis Judge.

M. H. Myerson and J. Henry Blount, both of Jacksonville for appellants.

David J Lewis, of Jacksonville, for appellee.

BUFORD, Justice.

In April, 1946 William D. Windsor being then a resident of Fulton County Georgia, obtained a loan of $1537 from The Bank of Georgia and concurrently therewith executed and delivered to the plaintiff, payable to its order, a certain promissory note bearing said date for the sum of $1537 with interest at 4% per annum, payable monthly in instalments of $66.74, the first instalment being due on June 1, 1946. On the same day, in order to secure the payment of the said promissory note, Windsor being then and there the owner of a certain automobile, made, executed and delivered to plaintiff then under the name of 'The Morris Plan Bank of Georgia,' its successors and assigns, two instruments called bills of sale to secure debt upon one certain 1942 Dodge automobile, 4 door custom sedan, motor No. NC-25082. The said note and the said bills of sale covering said automobile were filed for record on May 10th, 1946 in the office of the Clerk of the Superior Court of Fulton County, Georgia and recorded in Book 2178, page 346, as required by applicable statutes of Georgia.

On November 26, 1946, plaintiff filed its bill of complaint in the Circuit Court of Duval County to foreclose said bills of sale given to secure the note aforesaid against William D. Windsor, whose residence and whereabouts were then unknown, and against C. W. Lee and E. L. Connor as copartners trading as Lee-Connor Motors of Jacksonville in Duval County, Florida.

The bill of complaint alleged the making and delivery of the note and bills of sale securing the same by Windsor and the recording of the same in the office of the Clerk of the Superior Court of Fulton County, Georgia, and averred that without the knowledge or consent of the plaintiff Windsor brought the automobile into Florida after having defaulted in making payments due on November 1, 1946, and all subsequent payments and that Windsor subsequently, without the knowledge or consent of the plaintiff, disposed of the automobile to one Jessie W. Proctor who in turn transferred said automobile to one Howard Marsh of Jacksonville, Florida, who in turn transferred same to C. W. Lee and E. L. Connor as co-partners trading as Lee-Connor Motors, who at the institution of the suit had the automobile in their possession.

After motion to dismiss was filed and overruled the defendant Lee-Connor Motors answered the bill of complaint. The answer denies that the claim of the defendants to title to said automobile is subordinate and inferior to the alleged lien of the plaintiff. The answer then avers:

'Further answering said bill of complaint, these defendants say that on or about the 14th day of October, 1946, they purchased from Howard M. Marsh, of 215 E. 11th St., Jacksonville, Florida, the automobile mentioned and referred to in the bill of complaint, paying to the said Marsh, as the purchase price of said automobile, the sum of One Thousand Seventy-five Dollars ($1,075.00). That at the time of the purchase of said automobile, these defendants had no knowledge whatsoever of any liens or encumbrances against said automobile; that, on the contrary, these defendants purchased said automobile with positive assurance from the said Howard M. Marsh that there were no liens or encumbrances against said automobile; that at the time of the purchase of said automobile, the said automobile was registered in the name of Howard M. Marsh under Tag No. 2D 38395, under Florida Registration for the year 1946, such registration having been made by the said Marsh under date of October 10, 1946; that before making such purchase these defendants verified from the Office of Motor Vehicle Commissioner, at Tallahassee, Florida, that there were no liens against said automobile registered in the Office of Motor Vehicle Commissioner of Florida, as required by law in order to entitle the holder of any such lien to have an enforceable lien in the State of Florida; that application for title certificate was made by the said Howard M. Marsh and Title Certificate Number 1933846 B was issued to the said Howard M. Marsh by the Motor Vehicle Commissioner, which said certificate was transferred to these defendants by the said Howard M. Marsh. That in and by the transfer of the aforesaid Motor Vehicle Certificate of Title, in the space on the reverse side of said certificate in the form provided, it is particularly shown that said automobile was free of liens. These defendants further say that they are purchasers for value of said automobile; that they had no knowledge whatsoever of any purported lien in favor of the plaintiff in this cause; and these defendants further say that the alleged lien of said plaintiff was not, at the time they acquired title to said automobile, of record in this State and that no sworn notice of such alleged lien showing (1) name and address of the registered owner, (2) date and amount of lien, (3) description of motor vehicle, particularly showing make, type, motor and serial number, and (4) name and address of lien holder; was of record and recorded in the Office of the Motor Vehicle Commissioner of the State of Florida, all in accordance with the provisions of Section 319.15, Florida Statutes 1941 [F.S.A.]. And, these defendants further say that the notice of lien, which lien is sought by the bill of complaint to be foreclosed by these proceedings, was not filed in the Office of the Motor Vehicle Commissioner of the State of Florida, as required by the aforesaid mentioned provision of law and the said plaintiff, therefore, has presented such a cause as is not cognizable and enforceable in the Courts of this State.'

Thereafter, the parties, through their counsel, entered into a stipulation as to the facts involved in the case. This stipulation established the facts as heretofore outlined and as averred in the answer.

The case being submitted to one of the Circuit Judges of Duval County, he entered his decree in favor of the plaintiff. From this decree appeal was perfected.

We conceive the question to be determined is that as stated by the...