Travers v. Stevens

• Decision Date: 11 January 1933
• Citation: 145 So. 851,108 Fla. 11
• Parties: TRAVERS et al. v. STEVENS.
• Court: Florida Supreme Court

145 So. 851

108 Fla. 11

TRAVERS et al. v. STEVENS.

Florida Supreme Court

January 11, 1933

Rehearing Denied Jan. 31, 1933.

Commissioners' Decision.

Suit by T. M. Stevens against Julia A. Travers and others individually and as executors and trustees under the last will and testament of Edward Marion Hendry, deceased. Decree for complainant, and defendants appeal.

Reversed and remanded, with directions. Appeal from Circuit Court, Lee County; George W Whitehurst, judge.

COUNSEL

Sheppard & Clements, of Ft. Myers, and J. W. Frazier, Jr., and J Winfield Hendry, both of Tampa, for appellants.

Treadwell & Treadwell, of Arcadia, for appellee.

OPINION

DAVIS C.

On February 26, 1927, J. W. McWilliams Company, a corporation, being the owner of certain timber lands and personal property, executed and delivered a mortgage thereon for $300,000 to William B. Taylor as trustee, which mortgage was duly recorded. On November 14, 1927, the appellants obtained a judgment against the J. W. Mc Williams Company for $7,388.13, and on November 14, 1928, appellants obtained another judgment against the J. W. McWilliams Company in the sum of $8,148.81. The said judgments were recorded in the public records on November 23, 1927, and Novemer 19, 1928, respectively. On June 13, 1929, the said J. W. McWilliams Company sold the timber on the lands and also the personal property to Dowling-Camp Lumber Company, a corporation, for $405,000, of which amount $50,000 was paid to South Florida Land Company to satisfy a vendor's lien thereon, and the balance was to be paid in thirty-seven installments, which were represented by as many promissory notes, payable to the order of J. W. McWilliams Company. Simultaneously with the execution and delivery of the notes and mortgage executed by the Dowling-Camp Lumber Company, and as a part of the same transaction, William B. Taylor, as trustee, by an instrument under seal, released and forever discharged from the lien of his mortgage or trust deed the land and timber involved in this litigation, the consideration for such discharge being $1 lawful money of the United States of America, and also an assignment to him as such trustee of the notes and mortgage which the said J. W. McWilliams Company received as evidence of a portion of the purchase price for such property, 'all in such manner as to substitute such notes and mortgage for the property hereby released as security for the indebtedness secured by said trust deed' to him as trustee, and also, as a part of the same transaction, J. W. McWilliams Company assigned to William B. Taylor, as trustee, the notes and mortgage executed by Dowling-Camp Lumber Company as collateral security for the debt due by J. W. McWilliams Company to William B. Taylor, as trustee. It is agreed by the parties that the mortgage to Taylor, as trustee, was acquired by the appellee (complainant in the lower court), and has been foreclosed. It is also agreed that the complainant is 'now the owner and holder of the Dowling-Camp Lumber Company notes and mortgage' sought to be foreclosed in this cause, he having acquired the same at a sale by the pledgee, William B. Taylor, as trustee, with the knowledge that said notes and mortgage were delivered to Taylor, as trustee, 'as substituted security for the timber, which Taylor released from the operation of the first mortgage, and that Taylor accepted the notes and mortgage of the Dowling-Camp Lumber Company simultaneously with the release of the property herein involved from his first mortgage and as and for the consideration of said release.' The assignment of the Dowling-Camp Lumber Company notes and mortgage to Taylor contains, among others, the following recitals:

'Whereas, as a part of the said sale to the said The Dowling-Camp Lumber Company the said J. W. McWilliams Company agreed not only to secure the said release from the said William B. Taylor as Trustee but also to protect the said The Dowling-Camp Lumber Company against loss and damage by reason of the aforesaid unpaid taxes and/or the aforesaid amount owing to the said South Florida Land Company; and,

'Whereas, one element of the agreement under which the said J. W. McWilliams Company secured said release from William B. Taylor as Trustee aforesaid was and is that the notes and mortgage hereinafter assigned to him would be substituted for the property released as aforesaid, thus securing the unpaid portion of the indebtedness secured by the aforesaid mortgage in the form of a trust deed to him as Trustee,'

--and contains the further provision that any balance of the moneys collected by him from the Dowling-Camp Lumber Company remaining after satisfying his demands be paid over to the said J. W. McWilliams Company, its successors and assigns. Stevens filed his bill for the foreclosure of the Dowling-Camp Lumber Company mortgage, and therein and thereby showed the procurement of the said judgments, but alleged that the interests of the appellants, under said judgments, accrued subsequent to the lien of the Dowling-Camp Lumber Company mortgage, and was inferior and subject to the lien of said mortgage; it 'being a continuation of' the J. W. McWilliams mortgage.

On the day the bill of complaint was filed, the court appointed a receiver with full power to operate and maintain the sawmill plant, etc.

Testimony was taken before the chancellor, who afterwards made and entered a decree adjudging the equities to be with the complainant, that the lien of the Dowling- Camp Lumber Company mortgage was prior to the rights and interests of the defendants, Julia A. Travers, Susie Linebaugh, and Joseph Frazier, individually, and as executors and trustees under the last will and testament of Edward Marion Hendry, deceased, and that the receiver theretofore appointed 'make a report and accounting to this Court of the moneys received and disbursed by him in connection with such Receivership, and it is ordered that the costs of such Receivership, from the time of the filing of the answer of said defendants, Julia A. Travers, Susie Linebaugh and Joseph Frazier, individually, and as Executors and Trustees under the Last Will and Testament of Edward Marion Hendry, deceased, shall be itemized in said accounting to be filed by said Receiver, and that one-half of the Court costs accruing after the filing of the answer of said defendants last named shall be paid by said defendants last named to complainant herein.'

From this decree an appeal has been taken to this court.

But two questions have been presented here for us to answer. Stated tersely, they are:

(1) Did the court err in decreeing the lien of complainant superior to the judgment liens of appellants; and,

(2) Did the court err in decreeing that one-half of the costs that accrued after the filing of the answer of appellants be paid by appellants?

If we answer the first question in the affirmative, it will not be necessary to answer the second.

It is evident from the pleadings and proofs that it was the intention of both the J. W. McWilliams Company and Taylor that the lien upon the land and timber involved should be released for the purposes of sale upon credit, that the vendee of the timber should get an unincumbered title thereto, and that the J. W. McWilliams Company should receive, in return therefor, notes of Dowling-Camp Lumber Company for the unpaid purchase price of the land and timber secured by a mortgage thereon, which in turn should be assigned to Taylor as collateral to secure the payment of the debt due him by the J. W. McWilliams Company. We find no evidence of an intention to reserve in the holder of the Taylor mortgage a lien upon the land and timber released therefrom. Indeed, the language used in the release and also in the assignment from J. W. McWilliams Company to Taylor clearly indicates that it was the intention of both Taylor and the J. W. McWilliams Company that the notes and mortgage executed by Dowling-Camp Lumber Company be taken over and held by Taylor as...