Sapp v. Warner

Decision Date28 September 1932
Citation105 Fla. 245,143 So. 648
PartiesSAPP et al. v. WARNER et al.[*]
CourtFlorida Supreme Court

On rehearing.

Decree appealed from reaffirmed.

For original opinion see 141 So. 124.

BROWN J., dissenting. Appeal from Circuit Court, Dade County; Ira A. Hutchison, judge.

COUNSEL

Redfearn & Ferrell, Semple & Hirschman, and T. J. Dowdell, all of Miami, for appellants.

Shackleford Ivy, Farrior & Shannon, of Tampa, and Evans & Mershon and O B. Simmons, Jr., all of Miami, for appellees.

OPINION

DAVIS J.

On April 19, 1932, the final decree appealed from in this case was affirmed by a majority of this court, one justice dissenting and one justice not participating. See Sapp v Warner (Fla.) 141 So. 124. Thereafter a petition for rehearing was filed by the appellants. Rehearing was granted and argument had before the court en banc. The case is now before us for disposition on rehearing.

The petition for rehearing takes exception to certain portions of the court's opinion, wherein it is alleged there was an erroneous statement of some of the facts. For the purpose of correcting any such erroneous statement of the facts, the following restatement of them is now made:

A man named Patterson died in Dade county over twenty years ago, leaving his widow and a minor daughter surviving him. At the time of his death he owned title to the lands involved in this foreclosure suit. A Dr. Jackson of Miami was appointed guardian for the minor child by the probate court of Dade county. Thereafter, the guardian filed a petition for leave to sell real estate in which the minor child had an interest, which leave was granted.

The order entered by the county judge authorized the guardian to sell 'all the right, title, interest and claim of Annie Lester Patterson, a minor,' in the property in question. The guardian reported that he had sold the property to George E. Merrick for $20,000, to be paid on the following terms and conditions:

'Two Thousand Dollars ($2,000) cash and Eighteen Thousand Dollars ($18,000) in five (5) years, together with interest at the rate of eight per cent (8%) per annum, payable semiannually on all deferred payments; said deferred payments to be secured by a purchase money mortgage on said property, which said sum was paid for the entire title to the said property, two-thirds of which the said Annie Lester Patterson, a minor, is entitled to receive and will receive, and the other one-third of the said Twenty Thousand Dollars ($20,000) being paid to Jessie B. Markley, formerly Jessie B. Patterson, widow of Samuel L. Patterson and mother of Annie Lester Patterson, a minor.'

The county judge entered an order upon the foregoing report of sale and confirmed it. This order contained a provision which read as follows:

'That James M. Jackson in his capacity as guardian of Annie Lester Patterson, a minor, be and he hereby is authorized and empowered to execute and deliver a deed of conveyance to the said George E. Merrick, conveying all of the right, title and interest owned by the said Annie Lester Patterson, a minor, in and to the above described property and to take back a purchase money mortgage constituting a first lien against the property for all deferred payments.'

Pursuant to this order a single deed was executed by Jackson as guardian, joined by the widow, Mrs. Markley, and her husband. This single joint deed was made and delivered to George E. Merrick as grantee. In exchange, therefor, Merrick paid the $2,000 in cash and executed and delivered one note payable to James M. Jackson, Jr., as guardian of the estate of Annie Lester Patterson, a minor, for $12,000 payable five years after date, and another note payable to Jessie B. Markley for $6,000, maturing on or before five years after date.

To secure both and each of said purchase money notes, Merrick executed one purchase money mortgage to James M. Jackson, Jr., as guardian of the estate of Annie Lester Patterson, a minor, and Jessie B. Markley, individually. This was in literal compliance with the order of the court which had authorized delivery of the deed upon the taking back of a purchase money mortgage to secure 'all deferred payments.'

This original purchase money mortgage was misplaced and never filed for record. Thereafter, in order to evidence the terms and conditions of the misplaced mortgage, Merrick executed two mortgages, each dated August 4, 1923, each acknowledged September 30, 1926, identical in their terms, one of them being executed to James M. Jackson, Jr., as guardian of Annie Lester Patterson, a minor, and the other being executed to Jessie B. Markley, individually. The bill of complaint alleges and the lower court in effect found that the execution of these two subsequent mortgages was in order to evidence the terms and conditions of the misplaced single mortgage which had originally been executed for the purpose of securing 'all deferred payments' on the land which Merrick was purchasing from Annie Lester Patterson, a minor, and Jessie B. Markley, individually, as joing grantors.

The original purchase money notes were not paid at their maturity. In the meantime, Annie Lester Patterson had become of age and married Fred W. Warner. In consequence of the nonpayment of the notes, Jessie B. Markley, the widow, and Annie Lester Patterson, instituted suit for foreclosure of the original purchase money mortgage. [1]

While the new mortgages which had been executed by Merrick, as hereinbefore stated, were referred to in the bill for foreclosure it is specifically shown that they were so referred to only for the purpose of evidencing the terms of the original mortgage as a basis for its re-establishment and foreclosure.

All of the defendants in the foreclosure case claim interests in the property through George E. Merrick. George E. Merrick in turn acquired his title through the deed which had been executed on behalf of the minor by her guardian, joined in by Mrs. Markley, and her husband.

The answers of the defendants merely deny the priority of complainants' claim to foreclosure as against their respective interests. No attempt was made by any of the defendants in their pleadings to assert that the two mortgages which had been subsequently executed by Merrick were given for any other purpose than to evidence the terms of the original mortgage. No question of merger of the original mortgage, or of its release, by reason of the execution and delivery of the two new mortgages was therefore presented by the pleadings on behalf of the defendants.

Just before the trial the original unrecorded mortgage was found. This mortgage upon being properly identified was thereupon introduced in evidence. The chancellor entered a decree foreclosing the original mortgage and adjudged that the lien thereof was superior to the claims and interest of George E. Merrick, and each and every of the defendants in the case, all of whom were claiming under him.

The defendants appealed from this final decree, which appeal resulted in the previous affirmance of the decision of the lower court.

The chancellor held that, under the facts and circumstances presented by the record, defendants were charged with notice of the existence of the unrecorded purchase-money mortgage and that the lien of such original purchase money mortgage had not become extinguished because of the giving...

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