Spellman v. Beeman
| Decision Date | 21 December 1915 |
| Citation | 70 Fla. 575,70 So. 589 |
| Parties | SPELLMAN v. BEEMAN. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Orange County; Jas. W. Perkins, Judge.
Suit by H. L. Beeman against Agnes R. Spellman and another. From decree for complainant, the defendant named appeals. Affirmed.
Syllabus by the Court
Under section 2496 of the General Statutes of 1906, a subsequent mortgagee of personal property occupies the same position with reference to a prior unrecorded mortgage upon the chattel, as a subsequent purchaser.
Section 2496, Gen. St. 1906, makes possession by the mortgagee of mortgaged personal property essential to the validity of the mortgage as to creditors and subsequent purchasers for a valuable consideration and without notice unless it be recorded.
A chattel mortgage, once void as to a subsequent mortgagee for a valuable consideration and without notice of the prior unrecorded mortgage, is not restored to validity, as against the second mortgage, in the absence of fraud on the second mortgagee's part, by filing it for record before the second mortgage is filed for record.
COUNSEL Dickinson & Dickinson, of Orlando, for appellant.
Davis & Giles, of Orlando, for appellee.
This is an appeal from a decree of foreclosure of a chattel mortgage. W. M. Brittain, on July 7, 1913, was indebted to H. L. Beeman in the sum of $616.53, and, being so indebted executed and delivered to Beeman his three promissory notes for amounts aggregating that sum. In order to secure the payment of the notes Brittain executed and delivered to Beeman, on July 26, 1913, a mortgage on a certain automobile. The mortgage was filed for record in the office of the clerk of the circuit court for Orange county on September 26, 1913, and the mortgage was recorded in Miscellaneous Book 23, page 236, of the public records of Orange county. The record of the mortgage was indexed in the index of mortgages kept by the clerk in his office for that purpose, 'being the same book in which all mortgages filed in his office for record are indexed.' After recording the mortgage the clerk returned it to Beeman who kept it in his possession until he turned it over to his attorney for foreclosure. It was never recorded in any other book in the office of the clerk of the circuit court for Orange county.
On the 14th day of May, 1913, Brittain was indebted to Agnes R. Spellman in the sum of $800, evidence by his promissory note to her of that date. To secure the payment of that note he executed and delivered to Agnes R. Spellman a mortgage on the same automobile above mentioned. The mortgage was filed for record in the office of the clerk of the circuit court for Orange county on the 5th day of June, 1914, and was recorded in Miscellaneous Book 23, page 637, of the public records of Orange county. After it was recorded it was returned to Agnes R. Spellman by the clerk, and she again filed it for record on the 21st day of September, 1914, and it was by the clerk recorded in Mortgage Book No. 27, page 554, of the public records of Orange county. When the mortgage was first filed and recorded, it was 'duly indexed in the index of mortgages,' and when filed the second time and recorded in the mortgage book, it was 'indexed in the index of mortgages of Orange county.' 'Neither H. L. Beeman nor Agnes R. Spellman knew of the other's mortgage at the time of making and executing the respective mortgages, nor had any knowledge thereof, or any knowledge that the other had such mortgage.' Nor was the automobile delivered to either Agnes R. Spellman or H. L. Beeman, or any one for them, nor had either of them had possession of it under their respective mortgages.
The foregoing facts were by stipulation between the solicitors for Agnes R. Spellman and H. L. Beeman agreed upon and submitted to the court upon the final hearing.
On the 8th day of October, 1914, H. L. Beeman filed his bill in chancery to foreclose his mortgage against W. M. Brittain, making Agnes R. Spellman party defendant. Copies of the notes and the original mortgage were attached to the bill as exhibits.
Agnes R. Spellman answered the bill, admitting the execution of the mortgage from Brittain to Beeman and its record on the 26th day of September, 1913, in Miscellaneous Book 23, page 236, and setting up her mortgage from Brittain dated the 15th day of May, 1913, to secure a debt which he owed to her of $800, as evidenced by his promissory note to her for that amount, and the record of the mortgage as above recited. The answer denied that the complainant's mortgage from Brittain had ever been properly recorded. That after being recorded in Miscellaneous Book as stated, it was returned to Beeman and never refiled or 'recorded in any proper book, namely, Book of Mortgages,' and denied that her mortgage was a secondary lien to that of the complainant.
Brittain filed no plea, answer or demurrer, and an order taking the bill as confessed was duly entered against him. The complainant filed a replication to the answer of Agnes R. Spellman, and the cause was heard upon the bill of complaint, answer of Agnes R. Spellman, replication, and the stipulation as to the facts above mentioned.
The chancellor rendered his decree against the defendants, ordering them to pay to the complainant the sum of $695.86 with legal interest from the date of the decree, together with $75 solicitors' fees and costs within 3 days, and, in default thereof, that the automobile be sold at public sale to the highest bidder for cash after notice, appointing a master to conduct the sale and directing him to pay the complainant from the proceeds of the sale the amount decreed to be due, with solicitors' fees and costs, and to bring the surplus money, if any, into court to abide its further order, and that the defendants be barred and foreclosed from all equity of redemption in and to the mortgaged property. From this decree Agnes R. Spellman appealed to this court, and assigned eight errors.
The first and second assignments of error present the question of the superiority of the Beeman mortgage lien over that held by Agnes R. Spellman.
W. M. Brittain's debt to Agnes R. Spellman antedated his debt to H. L. Beeman by nearly 2 months. Brittain's mortgage to Agnes R. Spellman was executed 2 months and 11 days prior to the execution of his mortgage to Beeman. Beeman filed his mortgage for record 8 months before Agnes R. Spellman filed hers for record. In the meantime neither had actual knowledge of the other's mortgage upon the automobile. Both mortgages were recorded in Miscellaneous Book 23 of the public records of Orange county; Beeman's mortgage being recorded on page 236, and Agnes R. Spellman's on page 637. They were both indexed in the index of mortgages kept in the clerk's office for that purpose, and being the same book in which all mortgages that were filed in that office for record were indexed.
Beeman's mortgage was returned to him after being recorded in the Miscellaneous Book, and he never had it refiled for another record. Agnes R. Spellman, however, had her mortgage refiled on September 21, 1914, and recorded in Mortgage Book No. 27, on page 554, and it was again indexed.
Section 2496, General Statutes of 1906, provides that:
'No chattel mortgage shall be valid or effectual against creditors or subsequent purchasers for a valuable consideration and without notice unless it be recorded, or unless the property included in it be delivered to the mortgagee and continue to remain truly and bona fide in his possession.'
Section 2488, General Statutes of 1906, provides that:
'All instruments relating to real and personal property which are authorized or required to be recorded shall be deemed to be recorded from the time the same are filed with the officer whose duty it is to record the same.'
The statute relating to the duties of the clerk of the circuit court as recorder of deeds, provides, among other things, that:
Section 1832, Gen. Stats. of 1906.
Prior to the adoption of the Revised Statutes in 1892, there was no statute of this state requiring the clerk to record chattel mortgages in any specifically designated book in order to give constructive notice of their existence. So that the record of a chattel mortgage in Miscellaneous Record Book was a valid record of it, and gave constructive notice of its existence, assuming that its execution had been properly acknowledged to...
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