24 Fla. 490 | Fla. | 1888
delivered the opinion of the court:
On the 22d day of October, 1885, Alvan L. Evans and William S. Green, partners doing business under tbe firm name of Evans & Green, at Orange Park, in Clay county, in this State, executed an instrument in the nature of a mortgage, dated as above, to the appellants, A. Einstein’s Sons, of. “ all the goods, chattels and personal property mentioned in a schedule hereunto annexed and now in their store house in said town of Orange Park.” This schedule is as follows:
“ Schedule, All the fixtures, furniture and general merchandise contained at this date in the two store houses (one a grocery store and the other a dry goods store), occupied by Evans & Green, in the town of Orange Park, in the county of Olay and State of Florida,” and is signed by A. L. Evans and William S. Green.
The condition upon which the mortgage is to become void is the payment to A. Einstein’s Sons, their executors, administrators or assigns the sum of $478.75 upon the first day of December, 1885, and $558.60 on January 1st, 1886. The mortgagees also covenant and agree that in case de
The instrument purports upon its face to have been signed by both Evans and Green with their individual names, and it is attested as “ sealed and delivered in the presence of J. T. Copeland and W. M. Stockton.”
The acknowledgment upon which the instrument appears to have been admitted to record by the Clerk of the Circuit Court of Clay county, on the 23d day of October, 1885, is in the following words and figures: “ Ou this 22d day of 'October, A. D. 1885, personally appeared before me the •above named A. L. Evans and William S. Green, and acknowledged the foregoing instrument, by them signed, to be their free act,” and it appears to have been taken by J. T. Copeland, a Notary Public for the State at large.
On the 3d day of December, in the same year, Evans and Green made a deed couveying and transferring to Robert M. Shouse, the appellee, all the business, stock in trade, goods, wares and merchandise contained in two stores, situated iii the said town of Orange Park, and all their real and personal estate, except such as the law exempted from forced sale, of which property so conveyed a schedule was to be made as soon as practicable, and annexed. Under the terms of this deed Shouse was to take possession of the property,
On the 9th of December aforesaid the appellants filed a. bill against the mortgagors, Evans and Green, and the appellee, Shouse, praying among other things a decree foreclosing of the mortgage and for a sale of the property covered by it and the application of the proceeds to the in-, debtedness secured by it.
Process was served on the several defendants and a de-cree pro confesso was, the record states, entered against. Evans and Green for want of demurrer, plea or answer.
Shouse answered the bill, and exceptions taken thereto by the complainants having been overruled by the Chan-, cellor, they filed a replication, and testimony was taken,, and the cause coming on to be heard a decree dismissing the bill was entered, and from the decree an appeal has been taken.
Shouse asserts as a defence to the bill that the alleged, mortgage was never duly acknowleged or proved and filed for record in the office of the Clerk of the Circuit Court for Clay county, and that the mortgaged property was not at the time of the execution of the said instrument, and has. not since been delivered to the mortgagees.
The act of November 15tb, 1828, sec. 1, p. 213, McC.-s Dig., declares that no mortgage of personal property shall be effectual or valid to any purpose whatever, unless such mortgage shall be recorded in the office of records for the-
It is unnecessary for us to say whether or not an instrument in the nature of a chattel mortgage, where there has been no record of it, nor a delivery of possession of the chat-tie to the mortgagee and a retention of the same by him as contemplated by the statute, is of any effect or validity as against an assignee like the appellant, Shouse. This question is, under the view we take of the case, not involved.
The same section of the above statute provides, among other modes, that mortgages of personal property shall -be admitted to record upon proof of the execution thereof being made and exhibited to the recording officer in any of the ways hereinbefore .prescribed for proving the execution of conveyances, transfers and mortgages of real property.” Section 4 of this act (Sec. 6, p. 215, McC.’s Dig.,) required for the record of eonveyenees or mortgages of real estate that the execution thereof should be acknowledged by the party making the same or proved on oath by at least one of the subscribing witnesses thereto before the officer authorized to record the same or before some judicial officer of the State. The word “ proving ” in the above section includes the acknowledgment provided for in this. Sanders vs. Pepoon, 4 Fla., 472; Knowles vs. Martin, 22 Tenn., (3 Humph.), 619. An act approved February 8, 1861,, (Chap. 1127, Laws,) authorizes Notaries Public to take acknowledgments of deeds and other instruments of writing for record. The particular objection made to the record in the case before us is that the certificate does not show an acknowledgment of the execution of the instru
All the authorities hold that a substantial compliance with the requirements of these statutes is sufficient; it is not necessary to use its identical words. Henderson vs. Grewell, 8 Gal., 581; Owen vs. Norris, 5 Blackf., 479; Morse vs. Clayton, 13 S. & M., 373. A married woman “ acknowledged that she executed the deed freely,” and “ executed ” was held to be equivalent to “ signed, sealed and delivered,” the words of the statute, Smith vs. Williams, 38 Miss., 48; and a certificate of acknowledgment that the grantor acknowledged a deed to be “ his act and deed,” instead of using the language “ that he signed, sealed and delivered the same,” was sustained. Halls vs. Thompson, 1 S. & M., 443. See. also Den vs. Hamilton, 12 N. J. Law, 103.
Instruments like this, says the Supreme Court of the U. S., in speaking of an acknowledgment of this kind, should
The acknowledgment in the case before us. as it is shown by the certificate, was sufficient; and the mortgage having been recorded in Clay county, as it was on the day after its execution, delivery ot the property to the mortgagees was not necessary to the validity of the instrument.
II. The next ground upon which Shouse, the assignee, seeks to defeat the mortgage is, in short, that there was an agreement between the mortgagors, Evans & Green, and the mortgagees, the appellants, whereby the former were to remain in possession of the mortgaged property and sell goods without accounting to the latter for the proceeds.
In McCoy vs. Boly, 21 Fla., 803, we held that a mortgage duly recorded is not void as between the parties to it or as to a third person whose claim is not based on a valuable consideration, from the fact that it permits the mortgagor to sell personal property covered by it, without accounting to the mortgagee for the proceeds. In Logan vs. Logan, 22 Fla., 561, our decision was that such a mortgage of a stock of goods is void as to the creditors of the mortgagor.
Assuming for the present for the purpose of the question to be met, that the record before us may show such a state of facts of the character indicated as would render the
In Campbell Manufacturing Co. vs. Walker, 22 Fla., 412, the appellant made an agreement in writing with Ashmead Bros, to sell to the latter a printing press; it reserved to the vendor the title until the purchase money should be paid by the purchasers, although the press was delivered to the latter. The Ashmeads being in possession of the press, but not having paid’ the purchese money,, made an assignment of their property to Walker for the benefit of their creditors, and the appellant company brought replevin against Walker,who held the press under his deed of assignment, to recover the same. We held the-agreement was a conditional sale and valid against subsequent creditors and bona fide purchasers for a valuable consideration without notice, and not a chattel mortgage; and further, that Walker was neither a creditor of the Ashmeads nor a bona fide purchaser -from them, and that he could have no greater rights in the press than the Ash.meads had, and that they could not dispose of the property in the payment of their debts.
We have carefully examined the question of Shouse’s right to make the defence under discussion and our conclusion is that he cannot do so. The mortgagors could not do-it, and .he has no greater power or privilege in the matter than they had, nor could they give him more. This conclusion is in accordance with the decided weightof authority and entirely in harmony with the previous doctrines of this court on the same and analagous questions. It is a mistake to suggest that the case of Kent vs. Lyon, 4 Fla., 474,
That a voluntary assignee for the benefit of creditors caunot, in the absence .of legislation in aid thereof, resist the enforcement of a mortgage of his assignor, on the ground that if. was made by the latter in fraud of his creditors, is shown by the following authorities: Williams vs. Winsor, 12 R. I., 9; Wilson vs. Eslen, 14 ib., 621; Brownwell vs. Curtis, 12 Paige, 210; Storm vs. Davenport, 1 Sandf. Chan., 135; Van Hensen vs. Radcliff, 17 N. Y., 580; Flower vs.
Such an assignee is bound where his assignor would be bound. Morris’ Appeal, 88 Penn. St., 368; Wakeman vs. Burrows, supra.
The fact that some creditors are preferred by the deed of .assignment does not increase the assignees’powers, nor does the fact that they have accepted the same.
The assignee cannot invoke the rule that lie wbo hath done iniquity shall not have equity any more than his assignor could. As to all defences he stands in the shoes of ' the former.
The conclusion of the Court of Errors and Appeals of New Jersey, in Pillsbury vs. Kingon, 33 N. J. Eq., 287, that an assignee for tile beriefitof creditors’ may file a bill to set aside a conveyance made by his assignor in fraud of creditors, is not reached without invoking the aid ot the statute of that State as to such assignments. Many of the authorities make a clear distinction in favor of statutory assignees or trustees. We have no statute increasing the powers of such assignees in this respect. The act of 1881, sec. 72, p. 829, McC.’s Digest, is “an act to authorize the real parties "in interest to bring and maintain suits at law in their own names in certain eases.” In providing that all civil actions may be maintained in the name of the real party in interest bringing them,and that an executor, administrator, trustee of an express trust, including a person with whom or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted, it was the purpose of this statute to regulate the question of parties in actions at law in the cases to
The decree dismissing the bill was erroneous. Upon the ease made by the pleadings and proofs we think the complainants were entitled to a decree. The decree appealed from is reversed and the cause will be remandad for proceedings not inconsistent with this opinion. It is so ordered.