Seedhouse v. Broward

Decision Date22 December 1894
Citation34 Fla. 509,16 So. 425
PartiesSEEDHOUSE et ux. v. BROWARD et al.
CourtFlorida Supreme Court

Appeal from circuit court, Duval county.

Bill by Henry Seedhouse and Helen Seedhouse, his wife, against N. B Broward, as administrator of Mary Dagenhart, deceased Frederick W. Dagenhart, and Abram Campbell. From a judgment dismissing the bill, plaintiffs appeal. Reversed.

Liddon C.J., dissenting.

Syllabus by the Court

SYLLABUS

1. The maxim, 'Qui facit per alium facit per se,' applies in all its force to the official acts of deputy sheriffs. Under the provisions of section 5, p. 938, McClel. Dig., whenever the sheriff of a county was a party to or interested in any cause, a coroner of the county or an elisor appointed specially by the court was the proper person to serve the subpoena in such cause; and, whenever the service of a subpoena in chancery was made by any other person than the sheriff, the return of such service was required to be made under oath by section 3, p. 153, Id. Under this law whenever the sheriff was an interested party to a suit, he could not, either by himself or through one of his deputies, legally serve or execute any process in such cause.

2. Where a defendant in a chancery cause, in person or by attorney, enters a voluntary general appearance therein, he thereby submits himself to the jurisdiction of the court, and any illegality in the service upon him of the subpoena in the cause is thereby waived and cured.

3. Where it is evident from all the allegations of a bill for foreclosure of a mortgage and the exhibits thereto, filed against the administrator of a deceased married woman, that the mortgaged premises were the 'separate statutory property' of such married woman, with the title thereto vested in her individually, and not in a trustee for her benefit, a loose general allegation in the bill that such property was her 'separate estate' should be ignored as a patent piece of inadvertence, and a demurrer to such bill, upon the ground that the supposed trustee who holds the legal title to such property is not made a party defendant to such bill, should be overruled.

4. Under the laws of this state making mortgages nothing more than contracts granting specific liens upon property, and requiring judicial action to enforce their provisions, the fact that a mortgage and the note that it secures are made payable in the alternative to one or the other of two definitely named payees does not render them void; but such note and mortgage are enforceable in the courts. Held, further, that the better practice in such cases is that all the parties named as alternative payees should join in the suit to enforce such contracts.

5. Erections or additions put upon mortgaged real estate subsequently to the execution of the mortgage, under such circumstances as to stamp them with the character of fixtures thereon, as between the mortgagor and mortgagee and persons with notice, become subject to the lien of the mortgage.

6. In establishing whether a given thing is or is not a fixture upon land, the intention of the owner in placing it there, to be gathered from his declarations, and from the character, relations, and purposes of the property, is an important element, sometimes of controlling importance.

7. No citation upon appeal in a chancery cause is necessary to bring the appellees before this court where the appeal is taken in open court during term time.

COUNSEL J. W. Archibald, for appellants.

OPINION

TAYLOR J.

Henry Seedhouse and Helen Seedhouse, his wife, the appellants, on March 29, 1890, filed their bill in equity for the foreclosure of a mortgage in the circuit court of Duval county against N. B. Broward, as sheriff and ex officio administrator of the estate of Mary Dagenhart, deceased, Frederick W. Dagenhart, and Abram Campbell.

To the bill, as originally framed and filed, the defendants F. W Dagenhart and Abram Campbell interposed separate demurrers, but upon the same grounds, as follows: (1) That there was no matter of equity in the bill whereon the court could ground any relief as against said two several defendants; (2) practically a repetition of the above; (3) that said bill shows that said Mary Dagenhart was a married woman, and prays that a decree be rendered against her for money; (4) that said bill shows that the property alleged to have been mortgaged was the separate property of the said Mary Dagenhart, and that she has died since its execution, but fails to show that an executor or administrator has been appointed to administer said estate; (5) that the bill shows the property mortgaged to have been the separate property of the said Mary Dagenhart, a married woman, but fails to show that she was cognizant of the agreement alleged in the bill by which the engine, boiler, and machinery were to become a part of said statutory estate; (6) that said bill alleges that the said Dagenhart promised and agreed to purchase the said engine, boiler, and machinery, and to place the same on a brick foundation, so as to become an appurtenant to the land specifically mortgaged, and to become a part of the security for the payment of said sum of money, but fails to show that such agreement or promise, or any memorandum or note thereof, was in writing, signed by the said Dagenhart; (7) that said bill shows that said alleged promissory note is in the alternative, to pay Henry seedhouse or Helen Seedhouse, his wife; (8) that said alleged mortgage deed, annexed to and made part of the bill of complaint, creates an uncertainty as to who is the grantee intended. These demurrers to the original bill were sustained by the court as to the fourth ground thereof, but were overruled as to the other grounds set out above. The complainants then, by leave of the court, amended their bill, that, with the amendments made, alleges, in substance, as follows: That on or about the 25th of January, A. D. 1886, Frederick W. Dagenhart applied to complainants for a loan of money to purchase an engine and boiler and other machinery for the purpose of establishing a sausage factory. That the said Dagenhart promised and agreed to purchase the said engine, boiler, and other machinery, and to place the same on a brick foundation, so as to become an appurtenant to the S.W. 1/2 of lot 3 in block 24 of Riverside, which said property was the separate estate of the said Mary Dagenhart, and the said machinery, boiler, engine, and buildings were to improve and enhance the value of said realty, and were placed thereon with her full knowledge and consent, and she received the full benefit thereof, and enjoyed the proceeds thereof, and they were to become a part of the security for the repayment of the said sum of money to be borrowed by the said defendant. That, in accordance with said agreement, complainants loaned to the said Dagenhart the sum of $1,000, and the said Dagenhart did purchase with the funds so borrowed the said engine, boiler, and machinery, and placed them upon the lot, as he had agreed to do; they there by, by reason thereof, becoming a part of said realty, and thereby greatly enhancing the value thereof. That, to secure the payment of said loan, the defendants F. W. Dagenhart and Mary, his wife, did on the 1st day of February, 1886, make and deliver to complainants their promissory note whereby they promised to pay to the complainants Henry Seedhouse or Helen Seedhouse the sum of $1,000 three years after its date, with interest from date until paid, at the rate of 10 per cent. per annum, payable quarterly; and that, to secure the payment of said principal and interest, the said Dagenharts did, at the same time, execute under their hands and seals, and deliver to the said Henry Seedhouse, a mortgage deed upon and to that parcel of land situated in Duval county, Fla., more particularly described as being the S.W. 1/2 of lot No. 3 in square No. 24, being bounded on the northeast by the N.E. 1/2 of said lot, on the southeast by lot No. 6, on the southwest by lot No. 4, all in said square No. 24, and on the northwest by Oak street; said half lot therein and thereby conveyed measuring from northeast to southwest 52 1/2 feet, and from northwest to southeast 105 feet, being the same piece of land conveyed by deed to Mary Dagenhart, dated January 14, 1885, and recorded in Book H. pp. 62-65. That said mortgage, duly executed, was delivered to the said Henry Seedhouse and Helen Seedhouse, his wife,--and on the 5th of February, 1886, was duly recorded by the clerk of the circuit court of Duval county, Fla., as a mortgage in Book U, p. 153, of the public records of said county, which said mortgage was upon the proviso and condition that if the said Mary Dagenhart and Frederick W. Dagenhart, their heirs, executors, or administrators, should well and truly pay the said sum of money when due, with the interest thereon, according to the true meaning and intent of said promissory note, and all costs, charges, and expenses, including attorney's fees, which the parties of the second part might incur or be put to in collecting the same by foreclosure, that then, in that event, the said mortgage should cease and determine, and be null and void. That, in and by said mortgage deed, the said Mary Dagenhart and F. W. Dagenhart did covenant, promise, and agree to and with the said Henry and Helen Seedhouse to pay the said sum of money, principal and interest, when due, and all costs and charges, including attorney's fees, as aforesaid. That said mortgage deed, with said note copied therein, is hereto annexed, and made part of this bill of complaint. That on or about May 1, 1889, as complainants are informed and believe, the said Frederick W. Dagenhart sold said engine, boiler, and other machinery that he had placed upon said lot...

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13 cases
  • Burbridge v. Therrell
    • United States
    • Florida Supreme Court
    • May 1, 1933
    ... ... be removable as personalty. Greenwald v. Graham, 100 ... Fla. 818, 130 So. 608; Seedhouse v. Broward, 34 Fla ... 509, 16 So. 425 ... All ... buildings and other fixtures actually or constructively ... annexed to the freehold ... ...
  • Little v. Browning
    • United States
    • Missouri Supreme Court
    • April 9, 1921
    ... ... 28; ... Kenyon v. Shreck, 52 Ill. 382; Hunt's Heirs ... v. Ellison's Heir, 32 Ala. 173, et seq.; Cole v ... Johnson, 53 Miss. 94; Seedhouse v. Broward, 34 ... Fla. 509, 16 So. 425; Sullivan v. Sullivan, 42 Ill ...          In no ... case, however, do we find it held that a ... ...
  • Hull v. Burr
    • United States
    • Florida Supreme Court
    • November 16, 1909
    ... ... 177, text 189; First National Bank of ... Florida v. Ashmead, 23 Fla. 379, 2 So. 657; Jordan ... v. Sayre, 24 Fla. 1, 3 So. 329; Seedhouse v ... Broward, 34 Fla. 509, 16 So. 425; Coe v ... Finlayson, 41 Fla. 169, 26 So. 704; Wylly-Gabbett ... Co. v. Williams, 53 Fla. 872, text ... ...
  • First Nat. Bank v. National Grain Corp.
    • United States
    • Connecticut Supreme Court
    • December 23, 1925
    ... ... P. 641, 11 Am.St.Rep. 288; Burnett v. Pratt, 22 ... Pick. (Mass.) 556; ... [131 A. 407] ... Gilson v. Gilson, 2 Allen (Mass.) 115; Seedhouse ... v. Broward, 34 Fla. 509, 16 So. 425 ... So it ... has been held that where a mortgage is given to the cashier ... of a bank in his ... ...
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