Thomson v. Kyle

• Decision Date: 21 December 1897
• Citation: 39 Fla. 582,23 So. 12
• Parties: THOMSON et al. v. KYLE.
• Court: Florida Supreme Court

23 So. 12

39 Fla. 582

THOMSON et al. v. KYLE.

Florida Supreme Court

December 21, 1897

Appeal from circuit court, Alachua county; William A. Hocker, Judge.

Bill by J. C. Kyle against Della K. Thomson and another to foreclose a mortgage. Decree of foreclosure granted, and a money decree for deficiency rendered against defendant John M. Thomson. Defendants appeal. Decree of foreclosure affirmed, with modifications, and the money decree reversed.

Syllabus by the Court

SYLLABUS

1. A mortgage, properly executed by husband and wife, conveying the wife's separate statutory real estate as security for the husband's debt, is valid in this state.

2. So far as real estate or immovable property is concerned, the laws of the state where it is situated furnish the rules which govern its descent, alienation, and transfer, the construction, validity, and effect of conveyances thereof and the capacity of the parties to such contracts or conveyances, as well as their rights under the same.

3. Although by the laws of the state of a married woman's domicile she has no capacity to execute a mortgage upon her separate estate as security for the debt of her husband, yet if she, in that state, executes a mortgage of that character upon real estate in another state, whose laws permit a married woman to mortgage her real property to secure such a debt, the mortgage will, in the latter state, be held valid and enforceable by appropriate proceedings.

4. The validity and interpretation of personal obligations executed and to be performed in one state will be governed by the laws of that state when sought to be enforced in the courts of another state.

5. A promissory note executed and payable in one state, though secured by a mortgage on lands situated in another state will be governed as to the rate of interest it shall bear by the laws of the former state; and if, by such laws, all interest is forfeited for usury, the same result will follow upon foreclosure of the mortgage in the state where the mortgaged lands are situated.

6. There must be a substantial performance of conditions precedent to authorize recovery as for performance of a contract, and an allegation that the opposite party refuses to permit performance of conditions precedent is not equivalent to an allegation of performance, especially where the complaining party does not allege his willingness and ability to perform at the time of such refusal, or at any time prior to the expiration of the period fixed for performance.

7. An absolute repudiation of his part of a contract by one of the parties thereto prior to the time fixed by the contract for performance of the agreement of the other party, or while the contract is being performed by such other party within the time limited, will entitle such other party to an action for damages as for a breach of the contract, but such repudiation is not equivalent to performance or a legal excuse for nonperformance by the other party of conditions precedent, so as to authorize recovery as for performance of such conditions precedent.

8. Usury in and payments upon a note and mortgage sought to be foreclosed, are matters of defense proper to be pleaded in the answer of a defendant, and for that reason improper to be exhibited in a cross bill, where the amount of such payments and usurious interest is less than the mortgage debt.

9. Irregularities in chancery practice, if committed at the defendant's instance, and by his consent, are not available to reverse a final decree entered against him.

COUNSEL

Thomas E. Bugg, for appellants.

W. W. Hampton, for appellee.

A full statement of the numerous lengthy pleadings and depositions contained in this very voluminous record would fill many pages of our reports. For this reason we shall not attempt a complete history of the case, but will endeavor to state concisely the main facts bearing upon those assignments of error only which appellants have argued in their briefs here. The appellee (complainant below), on November 14, 1891, filed a bill in equity in the circuit court of Alachua county, praying foreclosure of a mortgage on certain real estate situated in that county. The mortgage debt was evidenced by a note executed by the appellants (defendants below) to complainant, under date January 18 1890, for $2,932, due April 10, 1890, and payable in the city of Birmingham, Ala. The mortgage given to secure this note was executed on the same day by the defendants. The defendant Della K. Thomson filed her plea on January 4, 1892, whereby she alleged that prior and subsequent to, and at the time of, the execution of the note and mortgage, she was a married woman, the wife of her co-defendant, and seised and possessed of a statutory separate estate in her own individual right and control, part of which was embraced in the mortgage; that the note and mortgage were executed in the state of Alabama, and that all transactions out of which the mortgage debt arose occurred in said state; that the mortgage debt was the debt of her husband exclusively, and she executed the note and mortgage as security only, and upon no other consideration; that by the laws of Alabama the obligation of a married woman executed for her husband's debt was null and void, and incapable of enforcement, and that the note and mortgage, being void as to her in the state of Alabama, were likewise void in the state of Florida. This plea was, upon argument, overruled.

On January 20, 1892, the defendant John M. Thomson filed his answer, in which he corroborated the matters of defense set up in the plea of his co-defendant, and, in addition, he alleged that the note evidencing the mortgage debt contained an item of about $300, which he alleged was interest for less than one year upon a cash advance of about $600 loaned him by complainant in the state of Alabama; that, according to the laws of Alabama, said sum was usurious, being in excess of 8 per cent. per annum, the legal rate of interest in said state; that under the laws of said state, where usurious interest is charged all interest is forfeited; that said mortgage indebtedness also included in item of $100, charged defendant by complainant for a loan of $1,820, in addition to the legal rate of interest under the laws of Alabama upon said loan; and that all of these transactions occurred in said state. Defendant further claimed two credits for payments made upon the mortgage debt,--one for $216.66, made by one Rankin Roberts for defendant, May 1, 1890; another for $400, made by one S. T. Taylor for defendant, May 15, 1890. Defendant further alleged that by complainant's advice on or about May 10, 1890, he exchanged certain hotel property in the city of Birmingham, valued at $90,000, with one S. T. Taylor, for a certain amount in cash and 600 shares of $100 each of the capital stock of the Birmingham Safe & Lock Company, an Alabama corporation, and made an agreement with complainant to give him $5,000 of the capital stock of the company for his services as manager of the company's business, and, in addition, to transfer to complainant $40,000 of capital stock as security for advances to the amount of $18,000, to be made by complainant in order to carry on the company's manufacturing business, and that defendant transferred to his wife $10,000 of the company's capital stock in payment for her dower interest in the hotel property. The answer charges the complainant with mismanagement of the company's property, decrying its business and financial standing, in order that he might purchase its stock and plant at a sacrifice; with failing to furnish the amount of money agreed upon; with requiring the transfer to him of $10,000 of the capital stock of the company for his services, instead of $5,000, as originally agreed; and with many other alleged improper acts of omission and commission in relation to the safe and lock company's business, including the taking of a note from the company for $10,000, in lieu of the $10,000 of stock transferred to him for services, which stock, it was ascertained, had been illegally issued, and was thereupon retired. It was further alleged that complainant violated his agreement with defendant to allow defendant to have 'current living expenses' out of the company's business, in consequence whereof defendant and his wife were compelled to pledge Mrs. Thomson's shares of stock with complainant at less than 50 per cent. of their face value, to procure money for this purpose; that complainant issued and sold bonds of the company, realizing $20,000 therefrom, which he used in other private matters, and not in the company's business, and that these bonds were sold upon a statement of the resources of the company prepared by complainant, showing total resources of more than $100,000; that on November 4, 1890, the complainant rendered defendant a statement of all advances made to him from May 10, 1890, which, after allowing certain credits, showed a balance of $15,655.80 against defendant, for which Mrs. Thomson executed her note, due December 15, 1890, whereupon complainant transferred to her 409 shares of the company's stock, agreeing that upon payment of the note he would deliver to her the company's plant, and the entire interest and business thereof; that this statement rendered and note given included the following items: $6,666.66 for the $10,000 of the company's capital stock which had been transferred to complainant for services, and subsequently ascertained to have been illegally issued; $4,000 to secure complainant against any liability he might sustain by reason of having become defendant's surety on an appeal bond in a case then pending in the supreme court of Alabama. It was further alleged that at the time of the execution of this note ...