Mcclure v. Century Estates, Inc.

• Decision Date: 27 November 1928
• Citation: 120 So. 4,96 Fla. 568
• Parties: McCLURE v. CENTURY ESTATES, Inc., et al.
• Court: Florida Supreme Court

120 So. 4

96 Fla. 568

McCLURE v. CENTURY ESTATES, Inc., et al.

Florida Supreme Court, Division B.

November 27, 1928

Suit by Lioyd McClure, as administrator of the estate of Lex J Kirkpatrick, deceased, against the Century Estates, Inc., and others. From a decree giving defendant Manatee River Bank &amp Trust Company a lien superior to that of complainant complainant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Assignments not argued nor considered in brief of counsel for appellant will be treated as abandoned. Assignments of error, which are not argued by, nor considered in the brief of, counsel for appellant, will be treated as abandoned.

Words or transactions showing intention on one side to assign, and intention on the other to receive, operate as equitable assignment, if there is valuable consideration. 'Any words or transactions which show an intention on the one side to assign, and an intention on the other to receive, if there is a valuable consideration, will operate as an effective equitable assignment.' 5 C.J. p. 911; Sammis v L'Engle, 19 Fla. 800.

Order, writing, or act appropriating debt or funds amounts to equitable assignment. Any order, writing, or act which makes an appropriation of a debt or funds amounts to an equitable assignment thereof.' 2 R. C. L. p. 614, par. 22.

Parol evidence may be introduced to show essential elements of contract, not contained in writing, or to explain ambiguities or uncertainties therein. Where a written instrument does not speak concerning essential elements of the contract, or where there is ambiguity or uncertainty as to the meaning of the contract which the writing undertakes to evidence, parol evidence may be introduced for the purpose of showing the essential elements of the contract between the parties, not contained in the writing, or to explain ambiguities or uncertainties in such written instrument.

True test of equitable assignment is whether debtor would be justified in paying debt to one claiming as assignee. The true test of an equitable assignment is whether the debtor would be justified in paying the debt to the person claiming as assignee.

Equitable assignment may be oral, or partly in writing and partly oral. An equitable assignment may be oral, or partly in writing and partly oral.

Parol evidence is admissible to show essential elements of contract of equitable assignment or explain ambiguities therein. Where the equitable assignment of a debt is in writing and the intent or the contract of the parties is not fully expressed, parol evidence is admissible to show essential elements of such contract of equitable assignment or to explain ambiguities or uncertainties therein.

Rule excluding parol evidence as to assignment in writing is inapplicable to assignments not purporting to state entire agreement; rule excluding parol evidence as to assignment in writing does not prevent introduction of evidence to explain ambiguous written assignment. The rule, that when an assignment is in writing parol evidence should not be introduced, is inapplicable to assignments which from their nature do not purport to state the entire agreement in respect to the subject-matter, nor does it prevent the introduction of parol evidence to explain an ambiguous written assignment.

Rule excluding parol evidence to vary written instrument is not applicable in controversy between parties or privies whose interests are the same. The rule excluding parol evidence to vary a written instrument is not applicable in a controversy between parties to such written instrument, whose interests thereunder are the same, or their privies.

Parol evidence was admissible to show agreement between vendor and those named as payees in purchase-money note regarding consideration and priorities. K., the vendor of certain real estate, took from C., the vendee, a mortgage upon the same property to secure the balance of the purchase money, which was evidenced by promissory notes aggregating $187,500, one of said notes for the sum of $12,500 being made payable to the order of S. V. & M. one year after date, and another of said notes for the sum of $50,000 payable to the order of said K. one year after date, and two notes for the sum of $62,500 each, payable to the order of said K., two and three years after date, respectively. Neither the mortgage nor the notes set forth the contract or agreement between K. upon the one part and S. V. & M. upon the other part, whereby the note for $12,500, payable one year after date and representing a part of the purchase money secured by the mortgage, was made payable to S. V. & M. Held: In a suit brought by the administrator of K. against C. for the foreclosure of the mortgage, in which S. V. & M. and their assignee, as owners of the note for $12,500, were made parties respondent, that it was not error to permit a witness, who was not interested in the litigation, to testify to the agreement and understanding between K. upon the one part and S. V. & M. upon the other part, regarding the consideration moving to K. for having S. V. & M. named as payees in said note for $12,500, and also to the agreement and understanding between them as to the priorities between said note and the promissory note for $50,000 payable to the order of K. and due the same day.

Execution of note for part of purchase price to another at direction of vendor, for valuable consideration, operated as equitable assignment of purchase money and lien securing it. Where the vendor of real estate, simultaneously with the execution and delivery of the deed therefor to the vendee, takes from such vendee a mortgage upon the real estate to secure the payment of the balance of the purchase money, said balance being evidenced by promissory notes for different amounts, payable on several future dates, and one of the said notes evidencing a part of the said purchase money and described in the mortgage is, at the direction of the mortgagee, made payable to a third party or order, for the purpose of securing a loan, or for other valuable consideration moving to the mortgagee, Held: That such transaction operates as an equitable assignment of the purchase money and the lien securing it, to the extent of the amount represented by such note.

Note for part of purchase money, executed to another on vendor's agreement, had priority over note payable to vendor maturing on same day. Where the vendor of real estate, simultaneously with the execution and delivery of the deed therefor to the vendee, takes from the vendee a mortgage upon the same property to secure the payment of the purchase money, as represented by several promissory notes, two of which said notes are made payable one year after date, one to the mortgagee and the other to a third person, at the direction of the mortgagee, and it is shown from the evidence that the mortgagee expressly agreed that the note made payable to the third party should have priority over the note made payable to the mortgagee and due on the same day, Held: That, in suit to foreclose the mortgage for the entire amount secured thereby, the owner and holder of the note made payable to such third party has priority over the note payable to the mortgagee maturing on the same day.

Assignee of one of series of notes secured by mortgage is entitled to priority as against mortgagee. Where a mortgage is given to secure a series of notes, and the mortgagee, for value received, assigns one of the notes, either by having same made payable to a third party or otherwise, and retains the remainder of the series, Held: That the assignee is entitled to priority of lien as against the mortgagee, with respect to the note so transferred; and this rule operates without regard to the order in which the notes held by the two parties mature. 3 Pom. Eq. Jur. (3d Ed.) par. 1203.

Security for series of notes must, in absence of contrary intention, be first applied to part of debt theretofore assigned. 'Where the holder of a mortgage assigns a part of it, although he warrants only the existence of the debt at the time of the transfer, it would be contrary to good faith to permit him, after receiving the money for this part of the claim, to come into competition with the assignee, if the property prove insufficient to satisfy both. Unless the intention be plainly declared on the face of the assignment that the assignee is to share pro rata in the security with the assignor, the equitable construction of it is that it must, in the first place, be applied to the part of the debt which is assigned.' Jones, Mortgages (6th Ed.) par. 1701.

Appeal from Circuit Court, Manatee County; W. T. Harrison, judge.

COUNSEL

J. M. Gardenhire, of Bradenton, for appellant.

Dewey A. Dye, of Bradenton, for appellees.

OPINION

CAMPBELL Circuit Judge.

In the court below, the appellant, as complainant, filed bill in equity for the foreclosure of a mortgage on realty, alleged to have been made, executed, and delivered by the Century Estates, Inc., a corporation, to one Lex J. Kirkpatrick, complainant's intestate.

It is alleged in the original bill of complaint and the amendments thereto that this mortgage was made to secure the payment of three promissory notes, executed by the mortgagor, Century Estates, Inc., and payable to the order of Lex J Kirkpatrick, one for the sum of $50,000, payable one year after date, and two for the sum of $62,500 each, payable two and three years after date respectively; also one note for the sum of $12,500 executed by Century Estates, Inc., a corporation, and payable to the order of O. L. Stuart, L. F. Vaught, and H. P. Munck one year after date. The contention of the complainant, as to the rights of the payees of the last-mentioned note, and their assigns, is set forth...