Sirkin v. Schupler
| Decision Date | 24 June 1925 |
| Citation | 90 Fla. 68,105 So. 151 |
| Parties | SIRKIN et al v. SCHUPLER. |
| Court | Florida Supreme Court |
En Banc.
Suit by Joseph Schupler against Harry Sirkin and others. Decree for complainant, and defendants appeal.
Affirmed.
Syllabus by the Court
Burden of showing notice to subsequent purchasers or mortgagees of land is on party claiming under prior unrecorded conveyance or mortgage. Presumptions are in favor of the bona fides of subsequent purchasers or mortgagees of real estate who claim to have had no knowledge of a prior, unrecorded conveyance of, or mortgage upon, the property by the grantor or mortgagor, and the burden of showing notice is upon the party claiming under such prior, unrecorded conveyance or mortgage.
Purchaser of land, with actual knowledge of unrecorded mortgage thereon, held to take property subject thereto. The purchaser of real estate who, at the time of the purchase, had actual knowledge of a mortgage upon the property, although the mortgage had not at that time been recorded, takes the property subject to the mortgage lien.
Findings of chancellor on facts not disturbed on appeal unless clearly erroneous. The findings of the chancellor on the facts will not be disturbed by an appellate court, unless such findings clearly appear to be erroneous.
Appeal from Circuit Court, Palm Beach County; E. C Davis, judge.
George R. Kline, Hollis T. Pope, and H. J. Quincey, all of West Palm Beach, for appellants.
Wideman & Wideman, of West Palm Beach, for appellee.
This is a suit to foreclose a mortgage on certain land therein described, given to secure the payment of an indebtedness represented by two promissory notes. The notes, which are dated January 29, 1920, were made by the defendant, Harry Sirkin, to the complainant, Joseph Schupler, and Louis Schutzer. The bill alleges that the complainant thereafter, on the 10th day of April, 1920, acquired by assignment from Louis Schutzer his interest in the indebtedness and mortgage given to secure its payment. It contains the following paragraph:
'That on the 30th day of March, A. D. 1921, the said Harry Sirkin and Julia Sirkin, his wife, by warranty deed conveyed to Tunis Johnson the fee-simple title in and to the above-described real estate, as will more fully appear by the record of said warranty deed in Deed Book 56, p. 265, of the public records of Palm Beach county, Fla., and by a certified copy of said deed hereunto attached, marked Complainant's Exhibit No. 4 and made a part of this bill of complaint, to which reference is made with the usual prayer; that the said Tunis Johnson did have actual notice of the interest of your orator by virtue of said mortgage; that at the time of the purchase and before delivery of above deed the said Tunis Johnson was put on notice of the existence and the lien of your orator's mortgage, and at the time of the delivery of the said deed the said Tunis Johnson well knew of your orator's mortgage and took title to said real estate thereto.'
Payment not having been made at maturity, suit was brought to foreclose the mortgage, resulting in a final decree for complainant, from which this appeal is taken.
By answer of defendant, Tunis Johnson, he denies that he had notice of the mortgage at the time of the purchase of the property and delivery of the deed to him therefor; and avers that prior to his purchase he procured an abstract of...
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