Swanson v. Bennett

• Citation: 25 So.2d 207,157 Fla. 113
• Parties: SWANSON v. BENNETT et al.
• Decision Date: 22 February 1946
• Court: Florida Supreme Court

25 So.2d 207

157 Fla. 113

SWANSON v. BENNETT et al.

Florida Supreme Court

February 22, 1946

Rehearing Denied March 29, 1946.

Appeal from Circuit Court, Broward County; Jos. S White, judge.

Carl A Hiaasen and McCune, Hiaasen & Fleming, all of Fort Lauderdale, for appellant.

John E Morris and Rogers, Morris & Griffis, all of Fort Lauderdale, for E. R. Bennett, appellee.

McKay Dixon & DeJarnette, of Miami, for G. A. Price, appellee.

SEBRING, Justice.

E. R. Bennett gave to Thomas E. Swanson and J. L. Varn his promissory notes not under seal to evidence a debt he owed them. For the purpose of securing the debt he also gave them at the same time a mortgage on certain of his real property, copies of the notes being incorporated in the mortgage. The mortgage contained the provision: 'Provided, always, that if said mortgagors, their heirs, legal representatives or assigns shall pay to the said mortgagees, their legal representatives or assigns, 6 certain promissory notes, a copy of which is on the reverse side hereof, * * * then this mortgage and the estate hereby created shall be void, otherwise the same shall remain in full force and virtue. And the said mortgagors covenants (sic) to pay the interest and principal promptly when due * * *. Should any of the above covenants be broken, then said note and all moneys secured hereby shall without demand, if the mortgagees, their legal representatives or assigns so elect at once become due and payable and the mortgage be foreclosed, and all costs and expenses of collection of said moneys by foreclosure or otherwise, including solicitor's fees, shall be paid by the mortgagors, and the same are hereby secured.' (Italics supplied.)

Subsequently, but before default in the mortgage, Bennett, the mortgagor, conveyed the property covered by the mortgage to G. A. Price by warranty deed. The deed contained the recital: 'It is understood and agreed that this deed is given subject to and the Grantee hereby assumes and agrees to pay the following outstanding mortgages all dated June 15, 1925 and payable as follows: * * * $3639.66 due on or before three years payable to J. L. Varn & Thos. E. Swanson, all bearing 8% interest from date.'

Thereafter Varn assigned his interest in the indebtedness evidenced by the notes and secured by the mortgage to Swanson. On February 16, 1945--more than five years, but less than twenty years, after the due date of the notes and mortgage--Swanson brought an action of covenant against Bennett, the mortgagor, and Price, the grantee under the warranty deed. The declaration in the case relied on the mortgage as the covenant under seal for the obligation of Bennett, the mortgagor, to pay the past due debt for which the mortgage and notes were given; and it relied on the covenant of assumption contained in the warranty deed under seal for the obligation of Price, the grantee, to discharge the indebtedness. The defendants demurred to the declaration on the ground that the cause of action was barred by the five-year statute of limitations applicable to contracts and notes not under seal. The demurrers were sustained by the trial judge on the authority of Alropa Corporation v. McNamee, 143 Fla. 785, 197 So. 514; and the plaintiff declining to plead further, final judgment was entered. The plaintiff has taken as appeal from the judgment.

We think that it is the generally accepted rule that if a mortgage contains a personal covenant whereby the mortgagor unconditionally promises to pay the debt for which the mortgage has been given as security, an action at law may be maintained on the covenant within the period of limitations applicable to sealed instruments, even though an unsealed promissory note given in the same transaction as evidence of the indebtedness may be barred by a shorter period of limitations. See Brown v. Cascaden, 43 Iowa, Runnells, 103; Earnshaw v. Stewart, 64 Md. 513, 2 A. 734; Lembeck & Betz Eagle Brewing Co. v. Krause, 94 N.J.L. 219, 109 A. 293; Dinniny v. Gavin, 4 App.Div. 298, 39 N.Y.S. 485, affirmed 159 N.Y. 556, 54 N.E. 1090; Ogden v. Bradshaw, 161 Wis. 49, 150 N.W. 399, 152 N.W. 654; Morgan v. Niswonger, 123 Or. 79, 260 P. 1010; Lincoln Nat. Life Ins. Co. v. Kelly, N.D. 17 N.W.2d 906; Guardian Depositors Corp. v. Savage, 287 Mich. 193, 283 N.W. 26, 124 A.L.R. 635, and note at page 645; 37 Am.Jur. p. 238, Mortgages Sec. 862; Jones on Mortgages, 8th Ed. Secs. 90, 1579. This rule has been recognized in this jurisdiction, Taylor v. Thomas, 111 Fla. 252, 149 So. 397; Wisdom v. Smith, 124 Fla. 371, 168 So. 814; and though Alropa Corporation v. McNamee, 143 Fla. 785, 197 So. 514, and Bank of Wildwood v. Kerl, 138 Fla. 527, 189 So. 866, may seem to have arrived at a contrary conclusion it is only because of the peculiar provisions of the mortgage covenants there under consideration, which differ materially from the covenant involved in the case at bar. In those cases...