Wylly-gabbett Co. v. Williams

• Citation: 42 So. 910,53 Fla. 872
• Parties: WILLY-GABBETT CO. et al. v. WILLIAMS et al.
• Decision Date: 17 January 1907
• Court: United States State Supreme Court of Florida

42 So. 910

53 Fla. 872

WILLY-GABBETT CO. et al. v. WILLIAMS et al.

Florida Supreme Court, Division B.

January 17, 1907

Rehearing Denied Feb. 20, 1907.

Appeal from Circuit Court, Levy County; James T. Wills, Judge.

Bill by H. A. Williams and others against the Wylly-Gabbett Company and others. Judgment for plaintiffs, and defendants appeal. Reversed, with directions.

Syllabus by the Court

SYLLABUS

An insolvent debtor may in good faith mortgage the whole of his property to secure the payment of one or more bona fide debts due to preferred creditors; and such a mortgage is not void as being an assignment for the benefit of creditors attempting preferences, under the provisions of section 2307 Rev. St. 1892, if at the time it is made the debtor in good faith intended it to be only a security for the debt or debts therein provided for, and had no design or intention at the time of thereby absolutely surrendering the dominion control, and ownership over the property, or of making a general assignment for the benefit of creditors generally, or of evading or defeating the statute forbidding preferences in voluntary assignments for the benefit of creditors.

An instrument must be considered a mortgage, if, taken alone or in connection with surrounding facts, it appears to have been given as a security. The mere absence of terms of defeasance cannot determine whether it is a mortgage or not.

A clause in a mortgage, made by a corporation conducting a sawmill and lumber business, that covers all the lands machinery, live stock, timber carts, and a railroad operated in connection with such business, empowering the mortgagor to sell worn-out and damaged machinery, animals, carts, rolling stock, etc., and to replace the same with the proceeds, does not render such mortgage fraudulent or void, as it might do in the case of a mortgage of ordinary goods.

COUNSEL

Cooper & Cooper and W. B. Young, for appellants.

A. W. Cockrell & Son and A. H. King, for appellees. The Wylly-Gabbett Company, a corporation of the state of Georgia, empowered by its charter of incorporation to engage in the manufacture and sale of lumber, and to own, buy, and sell timber and timber lands, and to construct, own, and operate sawmills and railways in connection therewith, and to mortgage its property, on the 8th day of August, 1904, executed the following instrument to George W. Owens and C. L. Heller as trustees, which was promptly filed for record and duly recorded in the office of the clerk of the circuit court of Levy county, Fla., where the property covered thereby was located:

'This indenture, dated the eighth (8th) day of August, A. D 1904, between the Wylly-Gabbett Company, a corporation organized and existing under the laws of the state of Georgia, hereinafter called the 'company,' party of the first part, and George W. Owens and C. L. Heller, of the city of Savannah, county of Chatham, state of Georgia, hereinafter called the 'trustee' (which word shall include any successor in the office of trustee), parties of the second part, witnesseth:

'That whereas, the company is indebted to the Germania Bank, of Savannah, Georgia, in the sum of twenty-three thousand, three hundred and thirty-three dollars and thirty-three cents ($23,333.33), to the Merchants' National Bank of Savannah, Georgia, in the sum of twenty-two thousand, five hundred dollars ($22,500.00), and to the Savannah Trust Company, of Savannah, Georgia, in the sum of fourteen thousand, one hundred dollars ($14,100.00), and the Atlantic National Bank of Jacksonville, Florida, in the sum of eight thousand, one hundred and fifty-two dollars ($8,152.00), evidenced by its promissory notes of even date herewith, payable to the order of said banks, respectively, six (6) months after date; and

'Whereas, the company will become further indebted to all, some, or either of said banks, or to other person or persons, corporation or corporations, on account of loans or advances made to it, amounting to twenty thousand, seven hundred and twelve dollars and forty-seven cents ($20,712.47), and may become further indebted to person or persons, corporation or corporations, for loans or advances made to it hereafter; and

'Whereas, the company is desirous of securing the payment of the present and any future indebtedness to said banks and to the other person or persons and corporation or corporations making advances hereunder by a mortgage of the properties and premises hereinafter described and conveyed; and

'Whereas, these presents have been submitted to the stockholders of the company and also to the directors thereof, and have been by them authorized and approved, and all conditions necessary to authorize the execution hereof have been complied with:

'Now, therefore, the company, in consideration of the premises and the sum of one dollar to it in hand paid by the trustee, the receipt whereof is hereby acknowledged, and to secure the payment of the principal and interest of the present and future indebtedness secured hereby, according to the terms and tenor of the promissory notes of the company now or hereafter held, doth hereby grant, bargain, convey, assign, transfer, confirm, set over, and deliver unto the trustee all the following properties, to wit:

'All and singular the properties of the company, real, personal and mixed, situate, lying, and being in the county of Levy, in the state of Florida, including the following, to wit:

'(A) All those certain tracts or parcels of land situate, lying, and being in the county of Levy, state of Florida, containing forty-one thousand, three hundred and nineteen and five-one hundredths (41,319.05) acres, more or less, together with the improvements, rights, members, and appurtenances thereto belonging or in any wise appertaining, conveyed by the Savannah Trust Company, trustee, to Wylly-Gabbett Company, by deed dated February 16th, 1903, and recorded in the office of the clerk of the circuit court in and for the county of Levy, state of Florida, in Book U, pages 686 et seq., to which deed, so recorded, reference is hereby made for full description.

'Excepting and reserving, however, the right of the McKinnon-Young Company, a corporation, and its successors and assigns, to turpentine privileges in the pipe timber upon said lands, more particularly stated and set forth in the deed from McKinnon-Young Company to Wylly & Gabbett, dated January 19th, 1903, covering said lands, to which deed and the record thereof in Book U, pages 676 [53 Fla. 876] et seq., of records of Levy county, Florida, reference is hereby made.

'(B) Also the real properties conveyed to Wylly-Gabbett Company by Jonathan B. Bunce, surviving trustee, by deed dated March 7th, 1903, and recorded in Book U, page 793, and by McKinnon-Young Company by deed dated March 6th, 1903, and recorded in Book U, page 715, and by William D. Mooney, by deed dated July 30th, 1903, and recorded in Book V, pages 163 et seq.; the reference hereby made being to deed books of record of Levy county, Florida, to which said deeds, so recorded, reference is made for full description.

'(C) Also all the properties of every nature and character described in and covered by the contract and mortgages between B. B. Stokes & Brother and the company, dated March 10th, 1903, and July 24th, 1903, and recorded, respectively, in Book K of Mortgages, pages 508 to 520, inclusive, and pages 534 et seq., in the office of the clerk of the circuit court in and for said county of Levy, state of Florida, which properties were conveyed by said B. B. Stokes & Brother to the company by deed dated the 24th day of July, A. D. 1904, to which contract and mortgages, recorded as aforesaid, and to which deed, as recorded, reference is hereby made for full description.

'(D) Also all the properties of every nature and character described in and covered by the contract and mortgages between Coleman & Burch and the company, dated April 9th, 1903, and July 25th, 1903, and recorded, respectively, in Book K of Mortgages, pages 520 to 532, inclusive, and pages 538 to 540, inclusive, in the office of the clerk of the circuit court in and for said county of Levy, state of Florida, which properties were conveyed by said Coleman & Burch to the company by deed dated the 27th day of July, A. D. 1904, to which contract and mortgages, recorded as aforesaid, and to which deed, as recorded, reference is hereby made for full description.

'(E) Also all the properties of every nature and character described in and conveyed by the contract and mortgages between Statesboro Lumber Company and the company, dated March 10th, 1904, and July 25th, 1903, and recorded, respectively, in Book K of Mortgage, pages 497 to 508, inclusive, and pages 536 to 538, inclusive, in the office of the clerk of the circuit court in and for said county of Levy, state of Florida, which properties were conveyed by said Statesboro Lumber Company to the company by deed dated the 27th day of July, 1904, to which contract and mortgages, recorded as aforesaid, and to which deed, as recorded, reference is hereby made for full description.

'(F) Also all the right, title, and interest of the company in and for the steel rails, plates, bolts, nuts, and spikes conditionally conveyed by Reppard, Snedeker & Company to Wylly-Gabbett Company by instrument dated June 29th, 1903, and recorded in the office of the clerk of the circuit court of Levy county, Florida, in Book K of Mortgages, folios 543 to 547, inclusive, to which said instrument and the record thereof reference is hereby made for full description of said properties; and also the right, title, and interest of the company in and to the steel rails, plates, bolts, nuts, spikes, and other property

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