Mcclure v. American Nat. Bank of Pensacola

• Decision Date: 27 January 1914
• Parties: McCLURE v. AMERICAN NAT. BANK OF PENSACOLA.
• Court: Florida Supreme Court

64 So. 427

67 Fla. 32

McCLURE v. AMERICAN NAT. BANK OF PENSACOLA.

Florida Supreme Court

January 27, 1914

Rehearing Denied March 3, 1914.

Appeal from Court of Record, Escambia County; Kirke Monroe, Judge.

Bill by the American National Bank of Pensacola against Lydia J McClure to enforce a mortgage lien. From decree for plaintiff, defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

As a general rule, the indorsement of a note which is secured by a mortgage carries with it such mortgage. The note is the principal thing, the mortgage being regarded as an accessory so that the transfer of the debt ipso facto carries with it the security. The assignee takes the mortgage as he does the note.

The certificate of a notary public, or other officer empowered to take acknowledgments, of the acknowledgment of a deed or mortgage, in the absence of fraud or duress, is conclusive as to the facts therein stated. The assignee of a note and mortgage, which are fair and regular upon their face in all respects, who has acquired the same for value before maturity in good faith, without any notice or knowledge of any latent defects therein or any fraud which may have been practiced in connection with the execution or acknowledgment, cannot be required to bear the consequences of such fraud.

COUNSEL R. P. Reese and Sullivan & Sullivan, all of Pensacola, for appellant.

Reeves Watson & Pasco, of Pensacola, for appellee.

OPINION

SHACKLEFORD C.J.

The appellee filed its bill in chancery against C. N. McClure and Lydia J. McClure, his wife, for the enforcement of a mortgage lien upon certain described lands, in which it was alleged that the mortgage was executed by the defendants on the 8th day of April, 1910, to secure the payment of a promissory note executed by C. N. McClure on the same day to H. P. Ferris for $700, payable 12 months after date, bearing interest at the rate of 8 per cent. per annum from date until paid, the interest being payable quarter-annually, and 'that thereafter, and prior to its maturity, for valuable consideration, the said H. P. Ferris indorsed the same over to this complainant,' who is the appellee here. C. N. McClure was served by publication and a decree pro confesso duly entered against him for failure to plead, answer, or demur to the bill. Personal service was obtained upon Lydia J. McClure, who filed an answer to the bill, to which the complainant filed the general replication, and the cause was referred to a special master to take the testimony of the respective parties. Upon the final hearing, a decree was rendered in favor of the complainant, in accordance with the prayer of the bill, against the two defendants. From this decree, Lydia J. McClure has entered her appeal, and has assigned five errors, all of which question the correctness of the decree and will be treated together.

We do not deem it necessary to copy the bill, which is in the usual form in such cases, the answer or the amended answer of the appellee. It is sufficient to say that the appellant in her answer neither admitted nor denied the execution of the promissory note by her husband and codefendant, C. N. McClure, or the assignment thereof before maturity to the complainant, as is alleged in the bill, but contented herself with demanding strict proof thereof. She avers that the land described in the mortgage was, at the time of the alleged execution thereof, and had been for a long time prior thereto, her separate statutory property, and denies that she ever consciously executed or acknowledged or intended to execute or acknowledge the mortgage in question but avers that her signature thereto was obtained by her husband through certain fraudulent means, which she proceeds to set forth in detail. Conceding that the proofs establish the facts that fraud and deception were practiced upon the...