Marcus v. Hull

• Decision Date: 09 May 1939
• Citation: 142 Fla. 306,195 So. 170
• Parties: MARCUS v. HULL et al.
• Court: Florida Supreme Court

195 So. 170

142 Fla. 306

MARCUS v. HULL et al.

Florida Supreme Court, Division B.

May 9, 1939

On Rehearing En Banc April 9, 1940.

Suit by B. Marcus against Charles C. Hull, individually and as the sole devisee and legatee under the last will and testament of L. B. Hull, deceased, to have a deed absolute declared a mortgage. From a decree dismissing the bill of complaint complainant appeals.

Decree reversed, and cause remanded for further proceedings not inconsistent with opinion. Appeal from Circuit Court, Sumter County; J. C B. Koonce, judge.

COUNSEL

Chester Ferguson and McKay, MacFarlane, Jackson & Ramsey, all of Tampa, for appellant.

S. S Sandford, of Tampa, and Stafford Caldwell, of Tallahassee, for appellee.

OPINION

BROWN Justice.

B. Marcus, plaintiff below, purchased real estate in Wildwood, Florida, during the year 1926, for the sum of $7,000. He erected thereon a two-story building of brick and steel. Immediately preceding the completion of the construction of the building, and on July 24, 1926, he secured a loan of $10,000 from Charles C. and L. B. Hull, trading as Hull Brothers, a copartnership, and executed his promissory note evidencing said indebtedness. To secure same he and his wife executed a mortgage on the premises covering the land and building thereon.

On August 29, 1929, the mortgagors executed a deed absolute in form to the mortgagees, which was duly recorded, covering the property described in the mortgage. Thereafter the mortgagees were allowed to manage and control the property and collect the rents and profits therefrom. On October 18, 1935, Marcus filed his bill of complaint praying that the court would decree that the deed absolute in form be adjudged to be a mortgage only; that an accounting be had between the parties to ascertain the amount of money still due the defendant on the mortgage indebtedness after a credit of rents, issues and profits realized from the operation and rental of the building, and that the plaintiff be allowed a reasonable time, to be fixed by the Court, within which to pay the mortgage indebtedness found to be due; that all instruments necessary to cause a proper discharge and satisfaction of the mortgage be executed by the defendant, as well as the execution of such other instruments as were necessary for record purposes to vest a fee simple title to the property in the plaintiff.

The defendant, Charles C. Hull, in his answer alleged that the deed was executed in full and complete satisfaction and payment of the mortgage indebtedness, that plaintiff had no interest in said property and was therefore not entitled to any accounting for the rents, issues and profits therefrom.

Upon petition of plaintiff a special master was appointed to take and report the testimony in the cause. The report of testimony was filed and thereupon the lower court found the equities to be with defendant and dismissed the bill of complaint at the cost of plaintiff. From said final decree this appeal is taken.

The only question to be determined by this Court is whether the lower court erred in holding that the testimony did not sustain plaintiff's contention that the deed, executed and delivered by him to defendant, was in fact only a mortgage and not an absolute conveyance of title.

If there is substantial evidence in the record to support a decree entered by the court below, it will not be disturbed on appeal by this Court, for the lower court's findings of fact are entitled to the same weight and consideration on appeal as the verdict of a jury. Schonfeld v. Engler, 119 Fla. 138, 160 So. 879; Boyte v. Stoer, 114 Fla. 395, 153 So. 845; Fickling Properties v. Smith, 123 Fla. 556, 167 So. 42; Dolan Properties v. Vonnegut, 117 Fla. 830, 158 So. 457.

Yet, where the evidence is so clear, certain and convincing that no other conclusion than that the lower court erred in its ruling can be reasonably reached therefrom, this court has no hesitancy in reversing the lower court's decree. Lucas v. Wade, 43 Fla. 419, 31 So. 231; Jones v. Jones, 119 Fla. 824, 161 So. 836, 104 A.L.R. 1.

The testimony in this cause was taken before a special master without authority to make findings and state conclusions and recommendations. The lower court did not have an opportunity to see and hear the witnesses, and consequently its decree is not on a par with the verdict of a jury. However, its conclusion will not be disturbed unless it clearly appears to be erroneous. Bowery v. Babbitt, 99 Fla. 1151, 128 So. 801; Tatum Bros. Real Estate Co. v. Osborn, 79 Fla. 130, 83 So. 703; Gollnick v. Barker, 94 Fla. 885, 114 So. 527; Lucas v. Wade, supra.

This case necessarily brings for the consideration of this court the application of Section 5724, Compiled General Laws 1927 which reads as follows:

'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. (Jan. 30, 1838, § 1, Ch. 525, Jan. 8, 1853, § 1.)'

This court has construed the above statute many times and in effect has held that an instrument given for the purpose or with the intention of securing the payment of money is a mortgage, Equitable Building & Loan Ass'n v. King, 48 Fla. 252, 37 So. 181; De Bartlett v. De Wilson, 52 Fla. 497, 42 So. 189, 11 Ann.Cas. 311; Elliott v. Conner, 63 Fla. 408, 58 So. 241; Tilman v. Niemira, 99 Fla. 833, 127 So. 855; Pineapple Orange Co. v. White, 113 Fla. 774, 152 So. 863, and if an instrument is a mortgage when executed its character does not change, for once a mortgage always a mortgage is a maxim of law. Connor v. Connor, 59 Fla. 467, 52 So. 727; Elliott v. Conner, supra; Pittman v. Milton, 69 Fla. 304, 68 So. 658; Stovall v. Stokes, 94 Fla. 717, 115 So. 828.

Thus, it only becomes necessary for us to ascertain from the evidence the intention of the parties at the time the deed absolute in form was executed and delivered to defendant. In doing so the Court may take into consideration the paper itself, or the instrument in connection with contemporaneous writings or agreements concerning the subject matter, or by the aid of extraneous evidence which will determine the decision of the question. The attitude of the parties relative to the conveyance after its execution may also be considered. Holmberg v. Hardee, 90 Fla. 787, 108 So. 211; Stovall v. Stokes, supra; Brumick v. Morris, 131 Fla. 46, 178 So. 564.

The testimony in this cause shows that the money, evidenced by the mortgage note and the mortgage, was obtained from L. B. Hull and C. C. Hull, a co-partnership trading as Hull Brothers, that the execution and delivery of the deed, and all attendant circumstances, were actually consummated by and between L. B. Hull and plaintiff B. Marcus, and that after the execution and delivery of the deed L. B. Hull continued in the active management of the property until his death in 1932; that practically all of the correspondence passing between the Hulls and Marcus was written by said L. B. Hull, and it was only after his death that C. C. Hull, defendant herein, took over the active management of the property, the collection of the rents, and had further dealings with Marcus concerning the property.

During November, 1928, L. B. Hull wrote Marcus a letter in which he stated that over $700 in taxes were due besides the interest, and that the Hulls would have to do something to protect themselves. Hull further stated that if Marcus would deed the mortgagees the front lots on which the building was constructed he (Marcus) could have the back lots and could buy the front lots back from the Hulls at what they had in it with interest for a reasonable length of time. Marcus testified that he turned the front lots over to L. B. Hull subject to the above letter.

On July 10, 1929, approximately one month prior to the execution of the deed, a contract was signed and sealed by Charles C. and L. B. Hull, the substance of which recited the outstanding indebtedness, the transfer of the property, and the right of plaintiff Marcus, at any time within one year after the execution thereof, to redeem the property by payment of the mortgage indebtedness. It is true that both parties, that is, Marcus and Charles C. Hull, testified that this contract was not the basis of the deed given the Hulls, but it is a circumstance which may be considered by this court in arriving at a true ascertainment of the intention of the parties at the time of the execution of the deed.

On August 19, 1929, Marcus executed a deed absolute in form, subject to the mortgage and taxes, to Charles C. and L. B. Hull. The Hulls then reconveyed the back lots to Marcus, who subsequently mortgaged them to secure an indebtedness of $225 due and owing the State Bank & Trust Company of Leesburg, Florida. The original notes were and are still retained by Hull. No satisfaction of the mortgage has ever been placed of record, although one was signed by the Hulls on August 27, 1929, and same was acknowledged on October 19, 1929. The satisfaction is also still in the possession of Hull.

An unbroken chain of correspondence was exchanged between the Hulls and Marcus during the year 1929, after the execution of the deed, to the year 1934, inclusive. On April 14, 1931, L B. Hull wrote Marcus to the effect that he, Hull, had received Marcus' letter, and he (Hull) did not know how to...