Snow v. Nowlin

• Decision Date: 06 August 1936
• Citation: Snow v. Nowlin, 125 Fla. 166, 169 So. 598 (Fla. 1936)
• Parties: SNOW v. NOWLIN.
• Court: Florida Supreme Court

169 So. 598

125 Fla. 166

SNOW v. NOWLIN.

Florida Supreme Court, Division B.

August 6, 1936

Foreclosure Proceedings by Anderson Snow against James A. Nowlin, wherein the defendant filed a counterclaim. From interlocutory decrees entered, plaintiff appeals.

Affirmed. Appeal from Circuit Court, Hernando County Fred L. Stringer, judge.

COUNSEL

Clyde H. Lockhart, of Brooksville, for appellant.

E. S Mackenzie, of Brooksville, for appellee.

OPINION

BUFORD Justice.

The appeal brings for review interlocutory orders in a suit to foreclose a chattel mortgage.

The entry of appeal confines the same so that it is from 'the interlocutory decree entered on the 28th day of January 1936, and from the interlocutory decree entered on the 29th day of January, 1936.' The decree filed in the office of the clerk of the circuit court on the 29th day of January 1936, denies the motion of the complainant to dismiss the counterclaim. The decree or order filed in the office of the clerk of the circuit court on the 28th day of January, 1936, denies motion to strike part of paragraph 4 of [125 Fla. 168] defendant's answer, and grants motion to strike paragraph 5 of defendant's answer, and provided that 'the plaintiff is allowed to foreclose the said mortgage with the exception of $571.60 which interest shall be retained by the defendant and not foreclosed.'

The chattel mortgage contained the following provision:

'It is further covenanted and agreed that in the event the party of the first part shall default in the payments of the purchase price to be made to the party of the second part, and the party of the second part repossesses said property, then the party of the first part shall retain and have an interest in said property equal to fifty (50%) per cent. of the total amount paid by the party of the first part to the party of the second part.'

The record shows that the mortgage was given for the purchase price of the property described therein; that the sum of $1,143.20 had been paid on the principal amount of the notes and mortgage securing same which were for the aggregate sum of $2,500. Fifty per cent. of this amount is $571.60.

The question presented is whether or not the clause contained in the mortgage which we have hereinbefore quoted is a valid and binding provision.

The appellant states eight questions which he says are to be determined by this court, but we do not find all of those questions presented by the record. The record presents no issue involving the right of the defendant in foreclosure to the equity of redemption.

Recognizing the law to be that the mortgagee in a chattel mortgage acquires no legal right to take possession of the mortgaged property without the consent of the mortgagor at the time possession is delivered, and that, if possession is refused by the mortgagor, the mortgagee must resort to foreclosure to acquire possession of the property, and also that a stipulation in a mortgage that upon default the mortgagee may take possession of the property and sell the same confers no greater right than the mortgagee would have had without that stipulation being in the mortgage, we hold that the word 'repossesses' as used in the paragraph of the mortgage hereinabove quoted must be construed to have been used as being synonymous with the word 'forecloses.' See 41 C.J. 830. This provision as so construed would not affect...