32 Fla. 481 | Fla. | 1893
Louis, Lawrence and. Jacob Lippman, doing business under the firm name of Lippman Bros., filed a bill against Edward I. Devane and wife, Alice Y. Devane, Louis M. Ballard and wife, Sarah E. Ballard, to foreclose a mortgage. The mortgage was executed on the 7th day of November, 1885, by Devane and wife to Sarah E. Ballard, wife of Louis M. Ballard, appellants, •to secure the payment of a promissory note for $580, payable the first day of January, 1887, with interest from date at the rate of eight per cent, per annum. This mortgage covers a lot of land in Lakeland, Polk -county, was duly acknowledged and recorded in the proper office on the 16th day of December, 1885. The note is endorsed “Pay to the order of Lippman Bros.,” .•and is signed by Sarah E. Ballard; and on the mortgage the following assignment is written: For value received I do hereby assign, transfer and set over the within mortgage, and the note to secure which it is .given, unto Jacob Lippman, Louis Lippman, and Lawrence Lippman, copartners under the firm name of Lippman Bros., of Savannah, G-a., their executors, administrators and assigns, with full power and authority to enforce the collection thereof, and to satisfy and cancel the same when paid off. Witness my hand and seal this — January, A. D. 1886.
Sabah E. Ballakd (Seal.)
L.- M. Ballard (Seal.)
In presence of—
Elmer Murch,
I. D. Stroud.
The bill alleges the transfer of the note and mortgage by Sarah E. and Louis M. Ballard on the 9th day of January, 1886, to complainants, Lippman Bros., and that they were the holders and owners of the same. Besides the usual allegations in such bills, the one before us further alleges that E. I. Devane purchased the mortgaged premises from Sarah E. and L. M. Ballard, and that the said note and mortgage were executed to secure a balance of purchase money due on the same; that subsequent to the execution of the note and mortgage Devane and wife sold and conveyed said lot to William H. Starling, and that Starling afterwards sold and conveyed the same to Sarah E. Ballard, and that the deeds of conveyance from Sarah E. and L. M. Ballard to Devane, and from De-vane and wife to Starling, and from Starling and wife back to Sarah E. Bollard had not been placed on record, but were in the custody and control of the Ballards who were then in possession of the lot.
An account is prayed for, and that Edward I. Devane and L. M. Ballard be decreed to pay the same.
All of the defendants demurred to the bill On the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled and Ballard and wife answered.
The execution of the note and mortgage by the De-vanes to Sarah E. Ballard is admitted, and it is alleged that on the 9th day of January, 1886, she endorsed, assigned and transferred the note and mortgage to the complainants. Lippman Bros., to secure
The cause was set down for hearing on bill, answer and exhibits, and a decree rendered in favor of complainants on December 27th, 1888, with a reference> to a special master to take an account of what was due on the note. The special master named in the order of reference submitted a report bearing date February 7th, 1889, showing that there was due on the note, principal and interest, $730.80. He also reported due-as an attorney fee the sum of $100. With the report.
On the 21st day of February, 1889, the judge at chambers rendered a final decree in favor of complainants for the sum of $730.80, the amount reported due on the note by the master, and the further sum of $100 for attorney fee, against the defendant Edward I. De-vane, and directed that the mortgaged premises be sold to pay the same, together with the costs of the suit. The final decree, report of the master and affidavit of the practicing attorney as to the amount of the fee, were filed in the clerk’s office the day the final decree wras rendered. Ballard and wife appealed.
The errors assigned in the petition of appeal are:
First. The court erred in overruling the demurrer.
Second. The court erred in decreeing in favor of complainants, and in referring the cause to the master to take an account.
Third. The court erred in rendering final decree in favor of complainants and against respondents.
The demurrer was properly overruled. The bill alleges the execution of the note and mortgage to Mrs. Ballard and the joint assignment of herself and husband of the same to appellees. The note was endorsed by Mrs. Ballard alone, blit there was a written assignment of the note and mortgage signed by both husband and wife. The demurrer admits the allegations of the bill, well pleaded, to be true, and this being so, it is clear that appellees showed a legal right to invoke the aid of the court in the foreclosure of the mortgage. The objections sought to be urged to the bill under the demurrer will be considered in disposing of the other assignments of error.
The other two assignments of error may be considered together. The cause having been set down for
But it is further contended by counsel, as we understand him, that inasmuch as the deeds of conveyance-from appellants to Devane, and from Devane and wife to Starling, and from Starling and wife back to Mrs. Ballard, were never recorded, but were destroyed, the estate in the mortgaged property never passed from Mrs. Ballard, and that the attempt to foreclose the mortgage is virtually an effort to subject her separate property to liability on her personal contract. The authorities cited on this point are from our own decisions, to the effect that the promissory note-of a married woman is not effective to bind her person either at law or equity, and that under our recording-statutes the absolute title remains in the gra'ntor in abeyance until the deed is recorded, and that he retains such an estate as can be conveyed to a bona fide purchaser for value without notice. Dollner, Potter & Co. vs. Snow, 16 Fla., 86; Emerson vs. Ross, 17 Fla., 122; Hodges vs. Price, 18 Fla., 342. We do not see-how the principles stated in these cases apply to the case before us. There is no effort to bind Mrs. Bal - lard personally on her endorsement of the note, nor does the decree appealed from tend to impose any liability on her, or her husband, on account of the transfer of the note and mortgage. Mrs. Ballard would not be a necessary party to the suit had not the title to the property describe! in the mortgage been reconveyed to her. Neither can it be said that she was in any
The admission of a sale and conveyance to Devane must be regarded as a complete and effective transfer of the legal title to him, and Mrs. Ballard has further admitted this fact by taking the mortgage on the lot to secure a balance of purchase money due on it. The. objection that because the deed to Devane was never recorded it was ineffective to convey the interest of Mrs. Ballard in the property, can not be sustained. 'This point has been settled in this court-Christy vs. Burch, 25 Fla., 942, 2 South. Rep., 258. It is clear then, on the showing made, that when Mrs. Ballard accepted the mortgage from Devane he held the legal title to the property in question. The assignment of the note and mortgage to appellees vested in them all the rights that Mrs. Ballard had in and to the same, and it is evident that no destruction of the deeds, or reconveyances of the property to her subsequent to the •assignment, can impair the rights they thus ac-•qmred. There is some uncertainty as to the time when Starling conveyed the property to Mrs. Ballard, whether before or after the assignment of the note and mortgage to appellees. The mortgage was executed on the 7th day of November, 1885, recorded on the 16th day of December of that year, and transferred to appellees on the 9th day of January, 1886. The bill alleges and the answer admits •that- the appellants sold and conveyed the lot in ques
It is further insisted that the decree should be reversed because no notice was given appellants of the proceedings before the special master, and that the final decree was rendered the day that the master’s report was filed. The report of the master is -dated February 7th, 1889, and it was filed in the proper clerk’s office on the 21st day of that month, the time when the final decree was signed and filed. In Adams vs. Fry, 29 Fla., 318, 10 South. Rep., 559, we said in proceedings not under default, “there is no rule of