Pittman v. Milton

• Decision Date: 17 March 1915
• Parties: PITTMAN et al. v. MILTON.
• Court: Florida Supreme Court

68 So. 658

69 Fla. 304

PITTMAN et al. v. MILTON.

Florida Supreme Court

March 17, 1915

Rehearing Denied June 7, 1915.

Appeal from Circuit Court, Walton County; J. Emmet Wolfe, Judge.

Suit by Ida Baker Pittman and others against W. H. Milton, as surviving partner, etc. From decree for defendant complainants appeal. Reversed and remanded.

Syllabus by the Court

SYLLABUS

When a replication is filed to an answer in equity, it puts in issue all the matters alleged in the bill of complaint that are not admitted by the answer, as well as those matters contained in the answer that are not responsive to the bill of complaint. Matters set up in the answer that are not responsive to the bill, as new matters in opposition to or in avoidance of the allegations of the bill, must be proved by the defendant.

The averments in the answer of new matter not responsive to the bill that are not proven cannot avail the defendant.

Affirmative averments in an answer that are not required by the bill of complaint, that do not grow out of any transaction of facts alleged in the bill or admitted in the answer, and that are not inseparably connected therewith, constitute new matter not responsive to the bill of complaint, and, if not proved cannot avail the defendant.

Where the answer in an equity cause sets up affirmative averments of new matter not stated or inquired of, and not inseparably connected with matter stated or inquired of, in the bill of complaint, and such new matter is in opposition to, or in avoidance of, the plaintiff's demand or claim of right and a general replication is filed, such affirmative averments are of no avail to the defendant, unless proven by independent testimony.

In order that the sworn answer of a respondent may have the effect of being evidence in his favor, and conclusive unless overcome by the testimony of two witnesses, or of one witness corroborated by other circumstances which add greater weight than the answer, it must be directly and positively responsive to the material allegations of the bill.

Averments of a sworn answer must be as to matters of personal knowledge, and must be directly and positively responsive to material allegations of the bill in order to be conclusive evidence in favor of the parties answering, unless overcome by the testimony of two witnesses or by the testimony of one witness and corroborating circumstances.

An answer in equity contradicted in a material point loses all weight as evidence, and serves the purpose only of a pleading in the cause.

An instrument must be deemed and held to be 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.

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.

If an instrument is a mortgage when executed, its character does not afterwards change, for 'once a mortgage always a mortgage' is a maxim of the law.

Where an agreement that a conveyance is not a mortgage, but an absolute conveyance, is wholly inconsistent with the facts of the case, such agreement does not make absolute a conveyance that under the statute may be shown to have been executed 'for the purpose and with the intention of securing the payment of money.'

If there be a reasonable doubt as to whether a transfer of property is a mortgage or an absolute assignment, the doubt should be resolved in favor of its being a mortgage, when there was an existing debt.

Where a life insurance policy is transferred by a debtor to creditors when a debt is due to them, and premiums paid on the policy are charged to the debtor, and it is not clearly shown that the transfer was, in fact, made absolute, it will be deemed to have been made for the purpose of securing the debt.

COUNSEL E. C. Maxwell, of Pensacola, and C. T. Prince, of Mobile, Ala., for appellants.

W. B. Farley, of Marianna, for appellee.

OPINION

WHITFIELD J.

Appellants brought suit against the appellee for an accounting for the proceeds of a life insurance policy issued on the life of N. A. Baker and assigned to secure an indebtedness to W. J. Daniel & Co., a partnership, of which firm the appellee is the surviving partner. There was a decree for the defendant, and the complainants appealed.

The bill of complaint alleges, in effect, that in 1895 N. A. Baker procured the life insurance policy for $10,000 upon his life, made payable to his wife, if living at his death, and, if not living, to the executors, administrators, and assigns of the insured; that N. A. Baker, who was engaged in business in Jackson county, Fla., became indebted to the said firm of W. J. Daniel & Co., composed of W. J. Daniel and the defendant, W. H. Milton, and in order to secure the said indebtedness transferred and assigned to the said W. J. Daniel & Co. the said policy of insurance, executing to them an assignment or transfer thereof; that the said assignment and transfer, while in form an absolute assignment, was intended and understood by all of the parties thereto as being merely a pledge or mortgage of the said policy as a security for the indebtedness of the said Baker, and was accepted and received by the said W. J. Daniel & Co. as such security; that the wife of N. A. Baker died May, 1901, and N. A. Baker died in July, 1906; that for some time after the pledge or assignment of said insurance policy as aforesaid to the said W. J. Daniel & Co. the said N. A. Baker continued to pay the insurance premiums thereupon to the said insurance society, but that before his death he became financially embarrassed and unable to do so, and thereafter the said premiums were paid by the said W. J. Daniel & Co.; that after the death of said N. A. Baker as aforesaid the said defendant, W. H. Milton, to wit, in the year 1906, under the policy and transfer thereof collected from the said Equitable Assurance Society of New York the amount of said insurance policy, to wit, the sum of $10,000; that the said W. H. Milton was authorized and entitled, as your orators are informed and believe from the said sum so collected, to satisfy and discharge the indebtedness, with interest thereon, of the said N. A. Baker to said firm of W. J. Daniel & Co. for advances as aforeasaid, to secure which said policy was transferred as aforesaid, and also to reimburse said firm for the insurance premium or premiums which they had paid upon said policy while pledged to them as aforesaid, with interest thereon; that the proceeds of the policy are largely in excess of the indebtedness of N. A. Baker to W. J. Daniel & Co.; that the defendant denies that the complainants or any of them are entitled to any part of said sum of $10,000 collected by the defendant as aforesaid, and claims that the said policy and its proceeds are the absolute property of the said W. J. Daniel & Co., and of himself as surviving partner of said firm in absolute ownership, and that he is entitled to the whole of said proceeds. The prayer is for a decree adjudging the assignment of the policy to W. J. Daniel & Co. was not an absolute transfer, but was a mortgage or pledge thereof for the purpose of securing the said indebtedness of the said N. A. Baker to said firm, and that proper accounting and distribution be made, and for general relief.

The defendant by answer under oath, the oath not being waived denies the allegations of the bill 'in setting up a claim against the defendant in the manner and form as therein alleged and set forth, except in the particulars hereinafter expressly admitted in the narration of the true facts,' and avers: That during the year A. D. 1895, and for several years theretofore, and until after the conclusion of all active transactions with said N. A. Baker, in said bill named, the said firm of W. J. Daniel & Co. was actively engaged in the banking business in Marianna, Fla., and during such time the said N. A. Baker did business with them, depositing money with said firm, and drawing checks against such deposits, and from time to time borrowing large amounts of money, and from time to time being indebted largely more than the amount of his deposits or credits, as well as at times having considerable money to his credit. The said N. A. Baker was a turpentine operator engaged in a business which required considerable money at times, and requiring advances to be made him. That said firm of W. J. Daniel & Co. was a private bank, and were as liberal towards said N. A. Baker as seemed reasonable, and from time to time took security upon the property of said Baker and protected themselves with security such as he could give on his property and the output of his turpentine farm. But at times the security was not of the best, but depended upon the life and business ability and acumen of said N. A. Baker to work out a profit by manufacturing spirits of turpentine and other naval stores, so that, while the security given by said N. A. Baker to said firm was such as is ordinarily taken by naval stores factors, yet, in the newness of the naval stores business in this section of the country then, and the fact that said firm of W. J. Daniel & Co. was not in the naval stores business at all nor...