Southern Bank & Trust Co. v. Mathers

• Decision Date: 09 November 1925
• Docket Number: 90.
• Court: Florida Supreme Court
• Parties: SOUTHERN BANK & TRUST CO. et al. v. MATHERS.

106 So. 402

90 Fla. 542

SOUTHERN BANK & TRUST CO. et al. v. MATHERS.

No. 90.

Florida Supreme Court

November 9, 1925

Suit by R. J. Mathers against the Southern Bank & Trust Company, as administrator of the estate of George W. Burns, deceased, and another, to foreclose a chattel mortgage and for an injunction. From a final decree for complainant, defendants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Unrecorded mortgage is void only against those creditors who obtain lien on mortgaged property before instrument is filed for record. Although recording statutes, such as section 3838 of the Revised General Statutes of 1920, usually provide that an unrecorded mortgage is void as to creditors, the prevailing doctrine makes the mortgage, on personalty as well as realty void only against those creditors who obtain a lien on the mortgaged property before the instrument is filed for record.

Ordinary may be recorded after debt is due. There is nothing in the statute above mentioned prescribing or limiting the time within which the record of the mortgage must be made, and ordinarily, it may be recorded after the debt secured is due though it would not be valid as against subsequent purchasers for value without notice or creditors who had obtained liens before recordation. There might be cases in which it would appear that there had been an unreasonable delay in having the record made, and in these cases a more rigid application of the statute might be proper.

Filing of chattel mortgage for record within 4 days after mortgagee's liability accrued, and 2 days after death of mortgagor, but before appointment of administrator, held not unreasonably delayed. Where a chattel mortgage was given to secure an indorser on a promissory note, due 30 days after date of execution, against his liability as indorser, and the mortgage having been filed within 4 days after the mortgagee's liability as indorser had accrued, and 2 days after the death of the mortgagor, but before an administrator was appointed, no unreasonable delay or laches in filing the mortgage is shown, where, as in this case, such delay is not shown to have prejudiced the rights of any of the parties.

Defendants setting cause down on bill for foreclosure, claiming allowance of reasonable attorney's fee and answer, cannot complain that no testimony was taken by referee as to reasonableness of fee allowed. Where a bill for foreclosure properly claims the allowance of a reasonable attorney's fee, and the defendants set the cause down on bill and answer, before a referee, they cannot be heard to complain that no testimony was taken by him as to the reasonableness of the fee allowed, nor will his finding be disturbed, where the amount allowed does not appear to be unreasonable.

On making findings and giving notice thereof by referee, effect of filing and entering final decree is to postpone effective date thereof for 10 days after receipt of notice of findings. Where a referee makes his findings and gives notice thereof and at the same time files and enters his final decree, the effect is to postpone the effective date of such decree for the period of 10 days after receipt of notice of the findings provided by the statutes (§§ 2865 and 2866, Rev. Gen. Stat.) within which time any party aggrieved would still have the right to make motions for new trials, rehearings, etc., though the better practice is not to enter the decree until 10 days has elapsed after the service of notice of the referee's findings.

Appeal from Circuit Court, Dade County; W. I. Evans, Referee.

COUNSEL

Lilburn R. Railey and Stapp & Vining, all of Miami, for appellants.

Price & Price, of Miami, for appellee.

OPINION

BROWN J.

Burns, an automobile dealer of Miami, needed $6,250 in order to pay for and obtain delivery of a carload of automobiles then in the hands of the carrier. He obtained this money from the First National Bank on two notes, aggregating that amount, dated October 28, 1922, due in 30 days, indorsed by Mathers. On the same date he made a 30-day note to Mathers for $6,250, providing for interest and reasonable attorney fees, and executed to Mathers a mortgage on seven automobiles to secure the same. It was provided in the note that it, and the mortgage securing same, were given to secure the payment of the notes which Burns had given to the bank and which Mathers had indorsed, and that, if Burns paid his notes to the bank, the note and mortgage to Mathers should thereupon be satisfied and canceled.

The notes fell due November 27th and were not paid by Burns. The latter died on November 29th. Mathers paid Burns' notes to the bank some days later. The mortgage was filed for record on December 1st. On December 2d letters of administration were issued by the county judge's court to the Southern Bank & Trust Company, which, on the same date, obtained an order for the sale of the assets of the deceased then in its possession upon giving 10 days' notice. It seems that three of the seven automobiles constituted substantially all of the assets. On December 20th Mathers filed a bill for the foreclosure of his mortgage on the three automobiles and for injunction of the sale which the administrator bank was preparing to make under said order, making said Southern Bank & Trust Company and the Maxwell Motor Sales Company parties defendant. It was alleged that the latter claimed some right or interest in the property. The bill alleged that, if the property was allowed to be sold, it would be scattered and depreciated in value, and complainant's security lost or impaired, also that the automobiles were not of sufficient value to pay complainant's mortgage, and asked that same be sold to pay the gage, and asked that same be sold to pay the due complainant under the mortgage, and the balance, if any, to be paid into the custody of the court, or as might be then ordered by proper decree. A temporary injunction was granted staying the sale as praye. The two defendants filed answers alleging that Mathers did not actually pay the two notes of Burns to the bank until December 8th, and denied that the property was insufficient to pay complainant's claim, and denied that the complainant had any right or priority under said mortgage as against the defendants; the mortgage not having been recorded until after the death of Burns, and the mortgagee not having taken possession of the property. The Maxwell Motor Sales Company denied claiming any title, right, or lien in the property, but claimed an indebtedness on an account against Burns for goods shipped to him on different dates from October 6 to October 27, 1922, due and payable November 15, 1922, proof of which had been filed with the administrator. These answers denied that complainant's security would be impaired by the administrator's sale, and incorporated demurrers attacking the equity of the bill on various grounds. The material questions raised are hereinafter considered.

The cause was submitted on bill and answers to W. I. Evans Esquire, who had been agreed on and duly appointed as referee, and came on for hearing July 17, 1923. On august 3d the referee made his findings, which were mailed to all of the attorneys for all parties defendant on that date, according to certificate made thereon by the referee, and which is not denied. On the same day the referee rendered a final decree, in accordance with his findings, making the temporary injunction permanent, and ordering the administrator to pay the amount ascertained to be due complainant, Mathers, on the mortgage debt, together with interest and an attorney fee of $700 (being approximately 10 per cent. of the debt), and, on failure of the administrator to pay the same, a foreclosure sale of the described property was decreed as prayed in the bill. This decree was dated August 3d, entered ...